UK: EHRC Issues Draft Guidance on Single-Sex Spaces
Authors: Charles Urquhart and Charlotte Stern
The draft updated EHRC Code of Practice for Services, Public Functions and Associations has been presented to Parliament, which, if implemented, will provide comprehensive guidance on complying with the Equality Act 2010 for service providers, public authorities and associations, and services provided to the public.
The Code will be implemented unless Parliament rejects it. It does not apply to private employers but may still be of some use to employers as a template of how it may be appropriate to respond to tricky issues around single sex services.
For service provision, the Code confirms that the Equality Act permits single‑sex services where restricting provision to one sex is a proportionate means of achieving a legitimate aim, and specified conditions are met, such as where only that sex needs the service or where a mixed‑sex service would be insufficiently effective without a single‑sex provision. Organisations should justify decisions with evidence, rather than making assumptions and consider whether less intrusive alternatives or a mix of services could achieve the same aim without undermining the service.
For toilets and similar facilities, the draft Code explains that separate-sex provision based on biological sex may be justified but also encourages providers to consider mixed-sex alternatives such as individual lockable rooms. It also says that for necessary services such as toilets, it is very unlikely to be proportionate to leave a trans person without access. Providers should therefore consider providing a balance of mix of single-sex and mixed-sex provision.
The Code highlights that if a service provider admits trans people to a service intended for the opposite sex, such a service will no longer qualify as a separate‑sex or single‑sex service and it will not be able to rely on the single‑sex service exceptions under the Equality Act.
Key Action Points for Human Resources and In-house Counsel
Overall, the message for public-facing organisations is that single sex services can be appropriate where proportionate and justified but that ideally mixed-sex services are provided alongside.
Providers should also follow the Code recommendation to have a policy explaining whether and how separate or single-sex services will be provided, recording the evidence and reasons for decisions.
