Transgender people can be legitimately excluded from single-sex services if the reasons are “justifiable and proportionate”, the government’s equality watchdog has said.
Guidelines from the Equality and Human Rights Commission indicate that the justification could be for reasons of confidentiality, decency, to prevent trauma or to ensure health and safety.
The body also advises that people with gender recognition certificates can be excluded from a separate or single-sex space as long as it is a “proportionate means of achieving a legitimate aim”.
It follows intense debate over whether transgender women should have automatic access to single-sex spaces such as shelters, toilets, jails and locker rooms. More recently, there has been a debate about the participation of trans women in women’s sports.
The guidance, released on Monday, is intended as a practical guide to help organizations such as hospitals, retailers, hotel and sports clubs implement legal policies and balance the needs of different groups.
According to the EHRC: “[The guidance] advises organizations such as hospitals, retailers, hotel and sports clubs to put in place policies that are both legal and balance the needs of different groups. The guidance confirms that service providers wishing to limit services to one sex only are legally able to do so, provided the reasons are justified and proportionate.
The EHRC says that “there are circumstances in which a legally established segregated or single-sex service provider may exclude, modify or limit access to its service for trans people.”
The guidelines, which apply to England, Scotland and Wales, advise service providers offering single-sex services to “consider your approach to trans people’s use of the service”, the nature of the service and why separate or single-sex service is needed. “You must then show that your action is a proportionate way to achieve that goal,” the guide says.
A spokesperson for LGBT+ rights organization Stonewall said the guidelines appeared to undermine the 2010 Equality Act and go out of their way to justify the exclusion of trans women.
“Far from clarifying how gender-segregated exemptions from the Equality Act should be used, the latest non-statutory guidance from the EHRC is likely to create further confusion. This seems to run counter to the fundamental presumption of the law that inclusion should be the starting point, and shifts the focus to why trans people, and trans women in particular, may be excluded.
“The examples seem to encourage blanket bans, rather than case-by-case decision-making, and cover restricting access to everyday settings like bathrooms and gym classes, which is extraordinary. This leaves more, not less confusion, and more, not less, risk of unlawful discrimination,” the spokesperson said.
Examples of single-sex services and legitimate justifications given in the guidance include services in hospitals and nursing homes where “users require special care, supervision or attention”, or separate changing rooms for men and women where “a woman could reasonably object to the presence of a man”.
Group counseling sessions for female victims of sexual assault where victims are thought to be “likely to be traumatized by the presence of a biologically male person” are also offered as a legitimate use of a space. not mixed.
Trans women could also be excluded from a domestic violence shelter offering emergency accommodation if residents “feel uncomfortable sharing accommodation… for trauma and safety reasons.” The provider should compile a list of alternative sources of support, it is suggested.
Leisure centers should be able to exclude trans women from women-only fitness classes, according to the guidelines.
The EHRC also gives the example of a community center with both men’s and women’s toilets whose users say they “would not use the center if the toilets were open to members of the opposite biological sex, for reasons privacy and dignity or because of their religious belief”. ”.
The guidelines applied whether or not the person had a gender recognition certificate to show they had legally changed their gender, the equalities watchdog said. “[Service providers] do not need personal information such as a gender recognition certificate to make a decision. You just have to decide whether your action is a proportionate means of achieving a legitimate aim,” he said.
Kishwer Falkner, Chairman of the EHRC, said: “Our mission at the EHRC is to protect the rights of everyone and to ensure that people across Britain are treated fairly. There is no room for discrimination against anyone because of their sex or gender change.
“Where rights between groups compete, our duty as an independent regulator is to help service providers and others balance the needs of different users in accordance with the law.
“Organizations are legally permitted to restrict services to only one gender in certain circumstances. But they need help navigating this sensitive area. That’s why we’ve published this guide – to clarify the law and uphold everyone’s rights.