Posted: 07/09/2022
In April 2022, the Equality and Human Rights Commission issued non-statutory guidance on the provision of separate and single-sex services.
The provision of single-sex services can be a particular issue within sports clubs with changing facilities, with sports providers having to balance obligations around equality - with trans participants understandably wanting to use the facilities for the gender they identify as - and safeguarding, with concerns being raised around sexual harassment, assaults and period stigma, particularly where children are involved. In school settings, there is a legal requirement to provide single-sex toilet and changing facilities for pupils aged eight and over, which will impact upon those providing sports facilities on school premises. It is not always possible to utilise the commonly cited solution of providing self-contained, lockable facilities which can be used by anyone.
There is an existing exemption permitting separate-sex sporting competitions, where one sex is generally considered to be at a disadvantage when compared to another, but this is becoming an area of increasing debate in relation to trans athletes and has been well publicised in the media. The Equality Act 2010 does make it lawful to restrict the participation of trans people from sporting competitions where physical strength, stamina or physique are significant factors in deciding who wins.
However, trans athletes should only be excluded where it is a necessary step to ensure the competition is fair and/or that the other competitors are safe. It may therefore be lawful to restrict participation of trans athletes in some sports but not in others.
While initially seen as a welcome step on a difficult issue, the new guidance has since been the subject of criticism from prominent trans rights campaigners and it has even been suggested that the guidance could lead employers into non-compliance with the Equality Act 2010.
So, what are the concerns with the guidance from a sports perspective?
A statutory code of practice for service providers already exists and this non-statutory guidance, curiously, fails to make any reference to that pre-existing and legally more powerful guidance.
This failure is misleading and could create confusion for service providers trying to ascertain their legal obligations.
If a service provider inadvertently breaches the statutory code, relying on this non-binding guidance will provide no defence against allegations of discrimination.
One example within the guidance provides a suggestion of how to address single-sex spaces, where some service users state that they would not use the service if the single-sex toilets or changing rooms were open to those of the opposite biological sex. This is an issue many sports providers will need to grapple with.
The guidance suggests that service providers could offer all service users the option of either using the toilet or changing room for their biological sex or a gender neutral facility if this makes them more comfortable.
This starts from a position of exclusion, with members of the trans community not being given the option to use the facilities for the gender that they identify as. Instead, it seems to recommend that a trans woman, who visually, and for all practical purposes, is indistinguishable from a non-trans woman, should use the men’s facilities. This would likely lead to them being challenged in male facilities and therefore result in them feeling they have no choice but to use the gender neutral facilities, to preserve their safety and dignity.
This example seems directly contradictory to the statutory code, which provides that a transsexual person who is indistinguishable from a non-transsexual person should generally be treated according to their acquired or affirmed gender, rather than their biological sex, unless there are strong reasons to the contrary.
While the non-statutory guidance makes no mention of the strong reasons requirement, it could be perceived as implying that other service users’ discomfort in sharing facilities with members of the trans community constitutes a valid strong reason. LGBT campaigners have pointed out that this could be used to suggest that there is some inherent danger in sharing a space with a trans person and legitimises prejudiced positions on this basis.
This omission, coupled with the examples set out within the guidance, could lead to well-intentioned service providers erroneously adopting blanket approaches to situations regarding single-sex services or spaces which are wrong in law.
For example, there is a significant difference between a young person starting out on their gender identity journey and a trans person who transitioned several years earlier.
The guidance also, critically, fails to mention the requirement on the service provider to show that there was no less discriminatory way to achieve the same objective. The perception, given to some, that blanket approaches can be adopted could lead to this consideration being overlooked.
From a sports provider’s perspective, this is critical for both the provision of single-sex facilities, but also separate-sex sporting competitions. Simply adopting the same approach taken by a governing body in a different sport, without undertaking a sport and competition specific analysis, could lead to legal challenges.
Likewise, adopting a blanket approach to all those identifying as members of the trans community in relation to one sport could lead to legal challenges. As mentioned above, where a trans person is in their gender identity journey could well be relevant to what impact their participation could have on the fairness of competition and the safety of the other competitors.
Finally, the guidance makes no reference at all to non-binary individuals who are an increasingly large demographic and seem to pose a specific quandary for service providers with single-sex services or spaces, and to separate-sex sporting competitions.
There are real concerns that, far from providing clarity to service providers, including those involved in the provision of sports, this new guidance confuses the situation. There is a material risk that sports service providers will stumble across this more recent guidance and not find the statutory code. This could lead to them missing the nuance of the law in this area and sleepwalking into non-compliance while, ironically, trying to do the right thing.
Given its non-statutory status, the guidance should therefore be treated with caution. The statutory code and the black letter law of the Equality Act 2010 remain the primary sources of information in this area and as mentioned above, following the guidance will provide no defence to claims for discrimination.
Taking into account the complexities in this area, the requirement to consider situations on a case by case basis and the obligation to ensure that service providers are adopting the least discriminatory approach to achieving the identified objective, we would recommend that service providers familiarise themselves with the statutory code of practice, consider engaging with trans groups where appropriate and practicable, and take advice wherever possible.
Fundamentally, service providers must be able to demonstrate that providing any service on a single-sex or separate-sex basis is a proportionate means of achieving a legitimate aim. This requires a balancing act on the impact on all service users. We would recommend that records are made and retained explaining any decision to operate single-sex and separate-sex services, including consideration of the trans community, supported by evidence where appropriate.
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