EHRC Guidance for Separate and Single-sex Providers in Scotland, England and Wales

That the Parliament welcomes the publication by the Equality and Human Rights Commission of what it believes is the much-anticipated guidance for separate and single-sex service providers in Scotland, England, and Wales; understands that this has been developed to provide guidance on the law to help organisations comply with their legal obligations; notes that the guidance states that the Equality Act 2010 allows for the provision of separate or single sex services in certain circumstances under “exceptions” relating to sex, and that, in order to establish a separate or single-sex service, providers must show that they “meet at least one of a number of statutory conditions … and that limiting the service on the basis of sex is a proportionate means of achieving a legitimate aim”; further notes from the guidance that “a legitimate aim could be for reasons of privacy, decency, to prevent trauma or to ensure health and safety” and that providers must then be able to show that their action “is a proportionate way of achieving that aim”; notes that the guidance states that “there are circumstances where a lawfully-established separate or single-sex service provider can prevent, limit or modify trans people’s access to the service”, that this is allowed under the Equality Act, however, that “limiting or modifying access to, or excluding a trans person from, the separate or single-sex service of the gender in which they present might be unlawful” if providers “cannot show such action is a proportionate means of achieving a legitimate aim”, and that “this applies whether the person has a Gender Recognition Certificate or not”; further notes that the guidance states that, when considering how a service is provided to trans people, providers must “balance the impact on all service users and show that there is a sufficiently good reason for excluding trans people or limiting or modifying their access to the service”; acknowledges the view that some service providers may find it helpful to have a policy for how services are provided to trans people, and notes that, where this is the case, the guidance recommends that providers can develop a policy but states that this is not a legal requirement, and that if service providers do have a policy, then they “should be prepared to consider whether particular circumstances justify departing from the policy”.