EHRC launches consultation on code of practice following biological sex ruling

On 25 April the Equality and Human Rights Commission announced that it would undertake a public consultation on updates it has made to its statutory code of practice for services, public functions and associations, following the Supreme Court’s judgment in For Women Scotland v Scottish Ministers.

Initially it said that the consultation would last two weeks. It has now extended that timetable to reflect public interest and to give it time to hold Q&A sessions with stakeholders representing those groups who are affected by the decision.

What does the draft say?

The consultation has updated the definition of legal sex throughout the code to say this is the legal sex recorded at birth and is unaffected by a gender recognition certificate.   

It sets out the chapters in the code which it has changed: chapter 2 explains who has rights under the service and public functions provision; chapter 4 relates to direct discrimination; chapter 5 to indirect discrimination; chapter 8 to harassment; chapter 12 to associations; and chapter 13 to exceptions.

I'm going to focus on changes to chapter 2 and 13.

1. Chapter 2: services, public functions and associations

The draft code includes new content about when organisations can ask individuals about their sex at birth. It says that you should only ask if it is necessary to discharge your obligations under the Equality Act, and explains how you should go about this where it is. 

Most of this is common sense. You shouldn't ask this in public (presumably this means where it could be overheard by other people) or do it in such as way that is ‘rude, combative or offensive’. 

The draft then considers when you might need to ask for evidence (as in proof) of someone's birth sex. It says that in ‘many cases’ it is sufficient to ask and, presumably, to accept what you've been told. That point was reiterated by the chair of the EHRC who said in a recent interview that asking for proof will be “rarely needed” and that organisations are entitled to set rules and trust people to follow them. 

The code says that you must have ‘genuine concerns’ about the accuracy of what you've been told before you can ask for proof. But it acknowledges that proof may be difficult to come by if someone has obtained a document which reflects their acquired gender rather than their birth sex. 

It also says that where it's relevant to ask about someone's birth sex, you ‘may make a rule that if someone is asked their birth sex and chooses to answer objectively falsely it will be grounds for exclusion from the service’. It would be helpful to have a worked example to help organisations understand this, particularly if the person they disbelive has documentation which states their sex is the same as the one they are asserting.

2. Chapter 13: exceptions

The draft code includes a new section which sets out the considerations you need to think about when deciding whether separate and single-sex services are a proportionate means of achieving a legitimate aim. It also sets out the circumstances in which mixed-sex services may be necessary, and the potential legal obligations (it means legal risks) of providing only mixed sex services. This reflects the guidance we recently published on toilets and changing rooms.

If you operate single or separate sex facilities you need to consider:

• the benefits of offering the service in this way
• the needs of those who will be accessing it; and
• the impact on those who are excluded.

It states that you should consider whether womens' safety, privacy or dignity would be at risk if shared with a man and sets out a number of factors where the benefits of offering a single or separate sex facility are likely to outweigh other considerations. This includes spaces where women are likely to be in a state of undress (the obvious example being changing rooms). 

It also recognises that as part of this balancing exercise you also need to consider the specific needs of people with different protected characteristics, such as older people, disabled people and those who observe particular religious practices. In this context it gives the example of Muslim people who may have a particular need for separate sex services to observe the requirements of their faith. 

You must also consider the impact on people who are excluded and ‘the particular impact on trans people of the opposite biological sex’. This includes considering if there is a less intrusive option than excluding trans people which would be proportionate. However, it is clear this doesn't mean permitting trans people into facilities that don't align with their biological sex: 

‘If it is justified to provide a separate or single-sex service, then it will not be unlawful discrimination because of gender reassignment to prevent, limit or modify trans people’s access to the service for their own biological sex, as long as doing so is a proportionate means of achieving a legitimate aim.’ 

The draft then says that individual circumstances may ‘exceptionally’ require a different approach. It gives the example of a female bringing her male child under the age of 10 into a female only changing room and explains its rationale. It acknowledges, however, that the law on this aspect is complex and not certain.

The draft also contains a section on excluding trans people who ‘present as the opposite sex’ from accessing the facilities that reflect their birth sex. It says that this should only happen if admitting them would cause alarm or distress to others (which I'd have thought must be restrictively interpreted) and only on a case by case basis. 

It says that trans people shouldn't be put in a position where there is no service they can use and provides an example of trans man denied entry to the female changing room where there is no other changing room they can use. The guide says if ‘it is disproportionate, the gym owner will not be able to rely on the exception for gender reassignment discrimination … [and] the trans man will be able to bring a complaint of direct gender reassignment discrimination, because [they] have been treated less favouraby than a woman who does not have [that] protected characteristic'.

It then sets out some useful advice about creating a policy which sets out your approach and shows that you have considered the interests of all groups who use your services.

How to respond

You can respond here. There are separate questions for organisations and for individuals. 

The EHRC are particularly interested in hearing from organisations and people on the front line. They want the examples in the code to reflect the situations you are most likely to encounter.

Does this code apply to employers?

If you are providing services to the public or performing public functions you need to understand the code.

The EHRC has a separate code of practice on employment which was published in 2011. It's over 300 pages long and provides an authoritative, comprehensive and technical guide to the law. Some parts of it will need to be updated to reflect the Supreme Court's decision but that won't happen yet, and it will be subject to a separate consultation.

When will the code be finalised?

The EHRC originally said that it wanted to finalise the code by the end of June. That's no longer possible as the consultation doesn't close until the end of June. The EHRC will have to consider the responses to it and make any changes to the draft before submitting it for approval by parliament. That might not happen until after the summer recess.

Should you wait for the Code to be approved before making any changes?

No. The legal position is set out in the Equality Act 2010 and has been clarified by the Supreme Court. The code is there to explain the law and to provide practical examples to help organisations understand it. It's possible that the draft code may change as a result of the consultation responses, but the law won't. 

The chair of the EHRC has made it very clear that organisations should obtain their own legal advice if they are not sure if they are applying the law correctly. 

Do organisations have to follow the code?

You aren't compelled to follow the code, but if it applies to you and you don't and are sued, it will be admissable as evidence in discrimination proceedings. A tribunal or court must take a statutory code of practice into account where is is relevant. 

Instruct an expert

We have a specialist group of employment lawyers who can advise you about your obligations under the Equality Act and have experience helping organisations who wish to provide single and separate sex facilities to comply with the law. Please contact Jenny Arrowsmith for more information.

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