Single sex spaces: EHRC takes action against 19 public sector organisations that are misrepresenting the law

Last year the Equality and Human Rights Commission wrote to the previous government expressing concern that many public bodies were not correctly applying the single sex provisions in the Equality Act.

In response, it launched a call for input asking for examples of policies or guidance, published by public sector employers (and those organisations advising them), which wrongly suggest that people have a legal right to access all single-sex spaces and services according to their self-identified gender.

The EHRC received 404 individual examples. It found that 10% had text or contained examples that appeared to misinterpret the Equality Act such as: 

• not acknowledging that the Act allows providers to exclude those with the ‘gender reassignment’ protected characteristic where justified, or
• acknowledging but misinterpreting these exceptions.

Fast forward nine months - during which the Supreme Court has handed down its judgment in FWS v the Scottish Ministers - the EHRC has completed its review and has announced that it is writing to 19 organisations whose policies are still incorrect. It's asked them to 'review policies that contain language wrongly suggesting there is an automatic legal right to access single-sex spaces based on self-identification’. 

Asking is an interesting word to use in this context. It's actually the first stage in the enforcement process the EHRC can take to compel organisations to comply with the law. Those that don't provide the EHRC with ‘assurances that policies will be withdrawn’ and when that will take place, are likely to face further action.  

These organisations haven't been publicly named but are said to be across the policing, education and health sectors. 

The EHRC has selected them through a process ‘that assessed potential breaches and their seriousness, considering factors including severity, organisational size, persistence, and potential impacts on vulnerable groups’. The list was further refined to include only organisations that still maintained ‘concerning policies as of last month’. 

The reference to ‘still maintaining concerning policies’ is, I think, an oblique reference to the FWS judgment. Despite a deluge of misinformation, which suggested that it had limited impact and/or could be ignored until the EHRC's new statutory code of practice for services has been approved, the EHRC has demonstrated that it won't allow organisations to continue to prevaricate. Businesses in the private sector are likely to be the next ones in the cross hairs.

The FWS judgment is clear and specifically addresses the single sex exception to the principles of non-discrimination contained in the Equality Act. Organisations that don't correctly apply the law can be sued by individuals and face enforcement action by the EHRC.

Need help? 

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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