single-sex spaces

Attorney General clarifies issues surrounding Equality Act and single-sex spaces

Speaking at the Policy Exchange about equalities and human rights, Attorney General Suella Braverman explored, and clarified, the many issues surrounding the Equality Act that arise as a result of single-sex spaces

Cases that have arisen under the Equality Act 2010 are yet another “vivid illustration of how aspirational legislation can so easily be blown off course”. This point was made by Lord Faulks QC in his foreword to Paul Yowell’s excellent Policy Exchange paper on the Act.

The Act represents a codification of the UK’s anti-discrimination law – some 116 prior Acts and Regulations. In part prompted by European Union law, the Act gold-plates and goes further than what the EU required in some areas. The aim of the Act was no doubt laudable, but its interpretation sits uncomfortably with our Human rights tradition. Its interpretation by various sectors is causing huge confusion for those attempting to decipher the correct balance of competing rights and protected characteristics. To be clear, I do not advocate repealing or scrapping the Equality Act. I am concerned about incorrect interpretation of its provisions.

This particularly applies to how we, as a society, support those people who claim protection of “gender reassignment” whilst at the same time supporting those who seek protection of rights defined by biological sex. Both public and private bodies are struggling to understand their obligations. My aim today is to provide clarity on the law.

For the purposes of Gender Recognition Certificates, we do not operate a system of self-identification in England and Wales. But some service providers behave as if they have a legal duty to admit biological males who identify as females into women-only spaces, from rape crisis centres and domestic abuse refuges to bathrooms and changing rooms. In my view this is not in accordance with the law.

The law supports the position adopted by my colleagues Nadine Dorries as Culture Secretary and Nadhim Zahawi when in post as Education Secretary. Paragraphs 26 and 27 of schedule 3 of the Equality Act are clear. They permit direct discrimination on grounds of sex: they permit “women-only” and “men-only” services, provided that the rule is a proportionate means of achieving a legitimate aim.

In law, single sex services are intended for one sex only: that is the very thing permitted by schedule 3. It follows that it is not possible to admit a biological male to a single-sex service for women without destroying its intrinsic nature as such: once there are XY chromosome adults using it, however they define themselves personally, it becomes mixed-sex. The existence of a Gender Recognition Certificate can create a legal position but cannot change biological reality. The operation of the Equality Act is such that the permission to discriminate on grounds of gender reassignment is permission to discriminate against someone who may be the “right” biological sex for a particular activity but has the protected characteristic of gender reassignment.

By way of example, a “women-only” rule for a women’s judo class excludes all men and will be lawful under paragraph 26 if a joint service would be less effective, and it is a proportionate means of achieving a legitimate aim. It will no doubt put people with the protected characteristic of gender reassignment (e.g. trans-women, by that I mean a biological male who identifies as a female) at a disadvantage compared to those without that characteristic. But in my view if the benefit that it confers is sufficient to justify direct discrimination against the whole class of men, it will in almost all circumstances be sufficient to justify indirect discrimination against a much smaller class of trans-women.

This interpretation is in fact supported by the explanatory notes to the Equality Act. Those notes give an example of a group counselling service for female victims of sexual assault. In that case, it is clear that an individual with the protected characteristic of gender reassignment (e.g. a trans-woman) could be lawfully excluded, if organisers believed that otherwise, women would be unlikely to attend the session. This position has also been upheld by recent guidance from the Equality and Human Rights Commission as well as case law such as the Elias case in the Court of Appeal, approved in Homer in the Supreme Court.

So if one group incurs a modest particular disadvantage and another group incurs a more serious particular disadvantage, justification for exclusion can be lawfully established.

Schools

The challenge is particularly acute in schools and for those whose professional responsibilities are to child welfare. Obviously school staff are highly motivated to do their best for children.

The problem is that many schools and teachers believe – incorrectly – that they are under an absolute legal obligation to treat children who are gender questioning according to their preference, in all ways and all respects, from preferred pronouns to use of facilities and competing in sports. All this is sometimes taking place without informing their parents or taking into account the impact on other children. Anyone who questions such an approach is accused of transphobia. In my view, this approach is not supported by the law.

For the sake of clarity, I will set out my view on the legal position under the Equality Act. By way of preliminary note, under 18s are unable to obtain a Gender Recognition Certificate and schools will generally be dealing with children whose sex for the purposes of the Equality Act is that registered at birth. Taking each issue in turn:

  • Yes, it is lawful for a single-sex school to refuse to admit a child of the opposite biological sex who identifies as transgender. This can be a blanket policy to maintain the school as single-sex. This does not constitute unlawful direct discrimination on grounds of sex under schedule 11 nor does it constitute unlawful indirect discrimination on grounds of gender reassignment. This is clearly a proportionate means of achieving a legitimate aim.
  • Yes, it is lawful for a mixed school to refuse to allow a biologically and legally male child, who identifies as a trans-girl, from using the girls’ toilets. This does not constitute direct sex discrimination and is not unlawful indirect discrimination on grounds of gender reassignment. Indeed, if the school did allow a trans-girl to use the girl’s toilets this might be unlawful indirect discrimination against the female children. Further, in law, there is a duty to provide separate single sex toilets, a breach of which would be unlawful under the School premises (England) Regulations 2012 and the Education (Independent School Standards) Regulations 2014.
  • Similarly, yes, it is lawful for a mixed school to refuse a biologically and legally male child who identifies as a trans girl from using a single sex girls’ dormitory. This is neither direct sex discrimination or unlawful indirect discrimination on grounds of gender reassignment. Sufficient comparable accommodation must be provided to both girls and boys. Protecting girls’ privacy, dignity and safety are eminently legitimate aims.
  • Yes, it can be lawful for schools to refuse to use the preferred opposite-sex pronouns of a child. This does not necessarily constitute direct discrimination on grounds of sex, particularly if unsupported by the child’s parents or by medical advice. Nor is it necessarily indirect discrimination on grounds of gender reassignment where a school has considered and can justify the approach. As set out in the interim Cass report, this is “social transitioning” and is not a neutral act. It is a serious intervention and should only be done upon the advice of an independent medical practitioner. Furthermore, schools and teachers who socially transition a child without the knowledge or consent of parents or without medical advice increase their exposure to a negligence claim for breach of their duty of care to that child.
  • Yes, it can be lawful for a school to refuse to allow a biologically male child, who identifies as a trans girl, to wear a girls’ uniform. This will be a significant part of social transition and the inherent risks of that could present an ample legitimate aim. Therefore, this does not necessarily constitute unlawful direct sex discrimination nor is it likely to constitute unlawful indirect discrimination on grounds of gender reassignment. Court of Appeal authority permits different dress codes for male and female employees and no rational distinction can be made for school uniforms.
  • Yes, it is lawful for a school to refuse a biologically and legally male child who identifies as a trans-girl from participating in girls’ single sex sporting activities. This does not constitute unlawful direct sex discrimination nor is it unlawful indirect discrimination on grounds of gender reassignment. This single-sex exception is based on the average performance of male and female participants.
  • And lastly, yes parents have a right under the Freedom of Information Act 2000 to request access to teaching materials used in their children’s state funded schools. They could also make an internal complaint followed by referral to the Department for Education and ultimately via judicial review. But parents do have the right to know what is being taught to their children.

A right not to suffer discrimination on grounds of gender reassignment is not the same thing as a right of access to facilities provided for the opposite sex. The exceptions in Schedule 3 and 11 create a mechanism whose sole purpose is to ensure that even though there is a general prohibition of sex discrimination, schools are legally permitted to take a single-sex approach. This is supported by the case law. Parliament could not have plausibly intended for these specific exceptions to be subject to collateral challenge by way of complaints of indirect discrimination by other protected groups such as those with reassigned gender. This would be to risk the Equality Act giving with one hand, and promptly taking away with the other.

Schools should consider each request for social transition on its specific circumstances, and individually, and any decision to accept and reinforce a child’s declared transgender status should only be taken after all safeguarding processes have been followed, medical advice obtained and a full risk assessment conducted, including taking into account the impact on other children. I hope that understanding the law will free up schools to act in each and every child’s best interest rather than being driven by a generic misunderstanding of legal duties.

This legal view is supported by the emerging evidence. As the interim Cass Report points out, “it is important to acknowledge that it is not a neutral act” to socially transition a child and there are different views on the benefits versus the harms and “better information is needed about the outcomes”. Given – I quote – the “lack of agreement, and in the many instances the lack of open discussion” among clinicians, there are very real legal dangers of schools “socially transitioning” children in this way.

Since the interim Cass report, schools must be sensitive to the fact that gender distress may be a response to a range of developmental, social and psychological factors- that something else may be going on. The fact that there has been an enormous increase in the number of cases, in addition to a complete “change in the case-mix” of those with gender distress within the last decade, from predominantly boys presenting in early childhood to teenage girls with no prior history, the fact that “approximately one third… have autism or other types of neurodiversity” and “there is over-representation” of looked-after children, should illustrate the complexity of what schools are dealing with.

Schools have a duty of care in relation to the health, safety and welfare of their children and they risk breaching this duty when they encourage and facilitate a child’s social transition as a blanket policy; or take the decision to do so without medical advice. Given the emerging nature of the evidence and the fact that even clinical professionals find it challenging to know whether transition is the right path for a child, it is not reasonable or fair for teachers to have to make this onerous decision alone. This is a decision that can have lifelong and profound consequences for the child.

This is particularly so when the child is harmed as a consequence, especially if social transition were to lead subsequently to binding, or medical or surgical procedures, and even more so if done without the knowledge or consent of the child’s parents.

To emphasise again, before going ahead with social transition, schools should get the best multi-disciplinary team around the table – including clinical professionals – and parents. In children’s healthcare the legal presumption is that parents act in the best interests of their children, until and unless there are strong grounds to suggest otherwise. There is no other situation where a school would make a significant life changing decision about a child without involving the parents – these children should not be treated any differently.

I understand that my comments may make those experiencing gender distress anxious, particularly when they may be waiting to access support from the NHS. More needs to be done to ensure that children do receive that support in a timely fashion, and more generally that being gender non-conforming is accepted and supported. Stereotypes of what it means to be a boy or girl can be challenged. But it is important that we take a prudent approach, particularly as we await the full Cass report.

Want to have your say? Leave a comment

Your email address will not be published. Required fields are marked *

Read more stories

Join nearly 3,000 other family practitioners - Check back daily for all the latest news, views, insights and best practice and sign up to our e-newsletter to receive our weekly round up every Thursday morning. 

You’ll receive the latest updates, analysis, and best practice straight to your inbox.

Features