How Legislation Protects Women-Only Spaces – New Legal Briefing

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A new legal briefing on how legislation protects women-only spaces and services has been drawn up by specialist lawyer Louise Whitfield. This overview of existing legislation outlines the specific areas where women have legal rights under the protected characteristic ‘sex’ and where those rights can be upheld when in potential conflict with people with the current protected characteristic ‘gender reassignment.’ In other words, these are the protections which were already in place for women as a biological sex category, before the Miller Report was published.

The summary includes the legal responsibilities of public bodies, instances where discrimination against other protected groups is lawful (ie. it is legal to exclude those groups) and where discrimination against women-only events is unlawful, under the Equality Act 2010.

It is currently legal to provide women-only (or single-sex) services under what’s referred to as the ‘exemption clause’ in the Equality Act 2010 which states the condition that the targeted provision is a proportionate means of achieving a legitimate aim. The examples given in the notes to the Equality Act were:

  • Cervical screening services (as only women need the service)
  • Women-only domestic violence support units (where women may not feel safe in the prescence of males)
  • Separate male and female hospital wards
  • Separate male and female changing rooms in department stores
  • A women-only massage service provided by a woman in the clients’ own homes
  • Group counselling sessions for female victims of sexual assault (who may not attend if a male transsexual was present)
  • Women-only Associations (where the purpose is to gather together people sharing a particular protected characteristic)

Any public body or organisation exercising a public function, is bound by obligations set out in Public Sector Equality Duty not to discriminate against women as a protected biological sex category, including the need to:

  • Eliminate discrimination and harassment of women
  • Advance equality of opportunity for women
  • Remove or minimise the disadvantages women suffer
  • Take into account women’s needs which are different from men’s needs
  • Encourage women to participate in public life and other activities in which their participation is low

Examples include:

  • Local authorities considering funding women-only groups
  • The continuation of single-sex services provided by an NHS Trust
  • Development of policies and guidance by central government

Organisations must give especially careful consideration to issues which are highly relevant to women’s equality:

“The greater the relevance and potential impact, the higher regard required by the duty”

Having due regard in respect of equality for one group should not be at the expense of another group protected under the Equality Act, but the Miller Report recommendations, if enshrined in law, would all but eliminate the right to the single-sex spaces and services for women and girls outlined in this briefing, as well as undermining the duty to eliminate discrimination and advance equality of opportunity for women as a sex if biological males meet the criteria for entry into women-only sports, prizes and awards, as is already happening.

The published guidelines for service providers raises questions about the Government’s own Public Sector Equality duty towards women in its failure to take into account women’s needs which are different from men’s needs. One of the conditions for the lawful provision of single-sex services in the notes to the Equality Act is that “the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex.” This would cover facilities where females require separate space away from males for reasons of privacy, dignity and safety; for example toilets, changing rooms, hospital wards, prisons, women’s refuges and rape crisis services.

The government guidelines not only specify that the comfort and rights of biological males should be prioritised over those of biological females in these areas, but that as little as a change of name and pronouns is all it takes for males to gain those rights.

Women and girls are currently protected as a sex, not as an identity. The proposed legislation puts us in a position whereby women’s protected ‘sex’ category would now include members of the opposite sex. In terms of how new legislation would be practically applied, women in effect lose the right to define ourselves as the female sex and are forced to accept a new definition of women as a ‘gender identity’ inclusive of biological males. If we are no longer defined as a sex we cannot fight for the rights of our sex.

We are seeing the new definition of ‘woman’ as ‘anyone who identifies as a woman’ being applied across women’s groups and organisations, student unions, women’s health bodies and even political parties, leaving females without their own unique representation or advocacy in public life.

The application of legislation which would effectively erase an established protected category of people makes a mockery of the whole system of ‘protected’ groups under the Equality Act: what greater form of discrimination against a group can there be than to legislate it out of existence?

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