On 27/9/19 the Twitter accounts for Scottish Transgender Alliance and Equality Network both tweeted:

“It has been claimed that they don’t fund single-sex services – that is code for services for women that operate a blanket exclusion of trans women. But such a service would almost certainly be breaching the Equality Act

The Equality & Human Rights Commission statutory code on the Equality Act says that women’s services may only exclude trans women “on a case-by-case basis in order to determine whether the exclusion of a transsexual person is proportionate in the individual circumstances

Blanket exclusion of trans women is likely to be unlawful. You can read more details on pages 197-8 of the EHRC’s statutory code of practice on the Equality Act, here:

It’s no wonder that @scotgov does not fund unlawful activity! ”

This is a woeful misinterpretation of the law.

What does the Equality Act 2010 say?

The Act states that services cannot discriminate against a person on the basis of their sex. 

However, there are exceptions to this prohibition, and single sex services are permitted where:

  • only people of that sex require it;
  • there is joint provision for both sexes but that is not sufficient on its own;
  • if the service were provided for men and women jointly, it would not be as effective and it is not reasonably practicable to provide separate services for each sex;
  • they are provided in a hospital or other place where users need special attention (or in parts of such an establishment);
  • they may be used by more than one person and a woman might object to the presence of a man (or vice versa); or
  • they may involve physical contact between a user and someone else and that other person may reasonably object if the user is of the opposite sex.

The provision of any Single Sex service is only permitted if it is a proportionate means of achieving a legitimate aim.

What does ‘a proportionate means of achieving a legitimate aim’ mean?

The aim of the provision should be legal and represent a real, objective consideration. (Code of Practice Pg 79)

Examples of legitimate aims include:

  • ensuring that services and benefits are targeted at those who most need them;
  • the fair exercise of powers;
  • ensuring the health and safety of those using the service provider’s service or others, provided risks are clearly specified;
  • preventing fraud or other forms of abuse or inappropriate use of services provided by the service provider; and
  • ensuring the wellbeing or dignity of those using the service.

These are the examples as listed within the EHRC Code of Practice

What is proportionate?

EU law views treatment as proportionate if it is an ‘appropriate and necessary’ means of achieving a legitimate aim. But ‘necessary’ does not mean that the provision is the only possible way of achieving the legitimate aim; it is sufficient that the same aim could not be achieved by less discriminatory means. (Code of Practice Pg 80)

Single Sex services considered to be a proportionate means of achieving a legitimate aim would include:

  • a cervical cancer screening service to be provided to women only, as only women need the service;
  • a fathers’ support group to be set up by a private nursery as there is insufficient attendance by men at the parents’ group;
  • a domestic violence support unit to be set up by a local authority for women only but there is no men-only unit because of insufficient demand;
  • separate male and female wards to be provided in a hospital;
  • separate male and female changing rooms to be provided in a department store;
  • a massage service to be provided to women only by a female massage therapist with her own business operating in her clients’ homes because she would feel uncomfortable massaging men in that environment

The Equality Act also states that services cannot discriminate against a person on the basis of Gender Reassignment.

However, there exists an exception that permits providers of single sex services to lawfully exclude people who have the protected characteristic Gender Reassignment.

Again, this exclusion would only be permitted if it was a proportionate means of achieving a legitimate aim and an example would include:

  • A group counselling session is provided for female victims of sexual assault. The organisers do not allow transsexual people to attend as they judge that the clients who attend the group session are unlikely to do so if a male-to-female transsexual person was also there. This would be lawful.

The tweeted statement from Scottish Transgender Alliance that ‘services for women that operate a blanket exclusion of trans women .. would almost certainly be breaching the Equality Act’ is a deeply inaccurate interpretation of the law. 

As seen in the example above the ‘blanket exclusion’ of transwomen from ‘a group counselling session … for female victims of sexual assault’ would be lawful.

It is incredibly misleading for Scottish Transgender Alliance to make this statement especially as they are well aware that this exception exists, having previously lobbied the UK Women and Equalities Committee to have it removed from the Equality Act.

The provision in Part 7 of Schedule 3 to the Equality Act that allows providers of single-sex services and facilities to discriminate against trans people …

We recommend this single sex services exception be removed.

Scottish Transgender Alliance

In between saying “such a service would almost certainly be breaching the Equality Act” and the “blanket exclusion of trans women is likely to be unlawful” they quoted the EHRC Code of Practice:

that women’s services may only exclude trans women “on a case-by-case basis in order to determine whether the exclusion of a transsexual person is proportionate in the individual circumstance”

What does the EHRC Code of Practice say?

  • A service provider can have a policy on provision of the service to transsexual users but should apply this policy on a case-by-case basis in order to determine whether the exclusion of a transsexual person is proportionate in the individual circumstances.
  • Service providers will need to balance the need of the transsexual person for the service and the detriment to them if they are denied access, against the needs of other service users and any detriment that may affect them if the transsexual person has access to the service.
  • To do this will often require discussion with service users (maintaining confidentiality for the transsexual service user).
  • Care should be taken in each case to avoid a decision based on ignorance or prejudice.
  • Also, the provider will need to show that a less discriminatory way to achieve the objective was not available.

Case-by-case basis

In order to apply the policy on a case-by-case basis, a trans exclusive policy must first exist.

The service provider would need to have already made the decision to provide a service exclusively aimed at women only, and that in order to best provide that service it would be necessary to exclude transwomen. 

This exclusive policy would need to first exist, as if it didn’t then on what possible grounds could the service then use to justify excluding any transwomen from using their service?  This scenario is simply not plausible, for a service to randomly be able to select the exclusion of some transwomen but not others.  Without an exclusion policy even existing, a service would unlikely be able to defend any discrimination claim made against them. 

If a service really did not have a trans exclusive policy then their doors would be wide open to absolutely anyone who identifies as a woman and there would be nothing the service could do to exclude them.  There would be no such thing as being able to exclude someone on a ‘case-by-case’ basis, as what would be the criteria applied? That someone doesn’t look like a woman? And who gets to decide what a woman looks like? 

A service would need to be either trans inclusive or trans exclusive.  It can’t possibly be both. 

Look again at the wording of the EHRC Code of Practice:

  • A service provider can have a policy on provision of the service to transsexual users but should apply this policy on a case-by-case basis in order to determine whether the exclusion of a transsexual person is proportionate in the individual circumstances.

This advice is on the assumption that a ‘women only’ service would have a clear policy that it was for women only.  It would need to be clear that it was a service that targeted women and excluded men.  The policy would also need to include a statement that people with the protected characteristic Gender Reassignment can be excluded.   But for this to work in practice it would need to be a blanket exclusion and worded in such a way that the service provider has the full discretion to exclude transwomen. 

If it weren’t able to be applied as a ‘blanket exclusion’ then on what basis would the service provider be able to justify their decision that some transwomen were permitted, and why others were not?  

Remember, the only reason why this exclusion would even exist is because they are providing a service to women and they have already judged that some women may not use their service if a male-to-female trans person were present.

Applying this policy on a case-by-case can then only mean that in order for women to use their service no one would be required beforehand to prove that they weren’t trans.  

Also stated in the Code of Practice:

  • Service providers should be aware that where a transsexual person is visually and for all practical purposes indistinguishable from a non-transsexual person of that gender, they should normally be treated according to their acquired gender, unless there are strong reasons to the contrary.

This means that every woman coming through their doors would be assumed to be a woman.  There would be no checking of birth certificates or proof required that you are born female, or as some like to say ‘no checking of a persons genitals’.   However, if it is apparent that a person wanting to use their service is a transwoman, i.e. NOT ‘indistinguishable from a non-transsexual person of that gender’, then as the service provider would have already established within their policy, that a person with the protected characteristic Gender Reassignment can be excluded because it may prevent other women from using their service, then a decision has to be made about this individual.  And that decision can only be that they are excluded.  Otherwise, there would exist the situation as described above that some transwomen were permitted, but not others. 

But we also shouldn’t forget the initial aims of their policy – having already established that the presence of a transwoman could impact negatively on the other women using their service – anything that could be seen as compromising this would be at odds with their legitimate aim of providing women with this service.

(Of course, some larger providers with greater funds may be able to offer an alternative additional service that would be able to accommodate the needs of transwomen.)

Any provider of women’s services would need to establish upfront what were the aims of their provisions – at the most basic level this would include that:

  • it is a service targeted at women, and
  • men were excluded 

Further to that, in todays climate, they would need to state whether they were:

  • trans inclusive or
  • trans exclusive

A Trans Inclusive Policy would mean they would need to accept every single person who identified as a woman as no criteria could be applied to determine otherwise.

A Trans Exclusive Policy would mean that inclusion would only be ‘where a transsexual person is visually and for all practical purposes indistinguishable from a non-transsexual person’.  Everyone else would need to be excluded.

What is the situation for Womens Services in Scotland?

There are countless quotes available everywhere that categorically state that Womens Services are trans inclusive, here is just one of them:

Engender, along with Scottish Women’s Aid, Rape Crisis Scotland, Zero Tolerance, Equate Scotland, Close the Gap and the Women 5050 Campaign, have produced a document with frequently asked questions about women’s equality and the Gender Recognition Act.

We are not aware that any women’s organisation or group currently in our networks requires sight of a birth certificate in order to grant access to services or membership. All access to membership and services is based on self-identification. This will continue.

All violence against women organisations that receive Scottish Government funding provide trans-inclusive services. The requirement for trans inclusion plans has been in place for six years, and has not given rise to any concerns or challenges of which we are currently aware.

Engender

In order to receive Scottish Government Equally Safe (Violence Against Women and Girls) Funding for 2017–20, the eligibility criteria for the provider stated they must:

  • Ensure that your service is inclusive to lesbian, bisexual, trans and intersex (LBTI) women.  An LBTI Inclusion Plan should be submitted along with your application.

A guide for completing the LBTI plan highlighted the Domestic Abuse Resource Stronger Together as being particularly useful.  This guidance was drafted by LGBT Youth Scotland and Scottish Transgender Alliance and has received a lot of criticism.   It includes statements like:

It is unlawful discrimination to treat someone worse than others because they have a protected characteristic (as identified within the Equality Act 2010), in this case gender reassignment. It would therefore not be acceptable to refuse to provide a service to a trans woman because she is trans’

In the circumstance that other service users say that they are uncomfortable sharing a service with a trans woman, this is rightly seen as no reason for the trans woman to be moved. The service has to make any decision about provision based on good practice rather than prejudice. In this situation, we would work to educate other service users – much in the same way that we would if we received comments regarding other service user’s ethnicity, religious affiliation or sexual orientation.’

The guidance uses a definition for trans people that includes ‘transsexual people, non-binary people and crossdressing people.’

It also includes transwomen who are ‘only living in her new gender part of the time’ stating that:

Trans women may feel that they need to present in the gender they were assigned at birth in circumstances such as travelling, and at work, but feel safe enough to present in their acquired gender at home, or in refuge.

This guidance has only recently been removed from Rape Crisis Scotland’s website.

The content of this guidance comes as no surprise as James Morton of Scottish Transgender Alliance had argued for the single-sex service exception to be removed at the Women and Equalities Committee Transgender Equality Inquiry:

Chair: James, just moving the discussion on a little, in terms of the way that the Act works, your organisation argues for removing the expectation that allows single‑sex services to discriminate against trans people. Would you include in that women’s refuges?

James Morton: It is really important to recognise that just because somebody might need slightly different provision or might have some additional complexities about being included in a service, that should not be reason for not trying to include them or for treating them worse. 

It boils down to whether or not you really see trans women as women.

If you see a trans woman as a woman, then, just like a very butch lesbian woman or a woman with a severe mental illness or a Muslim woman in a burqa might be perceived as difficult to integrate or might receive a negative reaction from other service users, you would not turn them away.

You would work to educate, you would work to support and you would work to try to make sure that that service could be accessed by them, and that is really important.

We already know that women’s services in Scotland are trans inclusive, but what we didn’t realise was that the ‘safety net’ dangled in front us to keep us in line – that service providers can still exclude transwomen on a case-by-case basis – doesn’t actually exist!

A service would need to be either trans inclusive or trans exclusive. It can’t possibly be both. 

Just how many women have chosen not to engage with specialist services is as yet unknown.   The wider impact of this policy will reach far beyond the point of service delivery, and the fallout may be impossible to measure.

To everyone out there still declaring that ‘Trans Rights are Human Rights’ open your eyes and see what the movement you are supporting has done to Womens Rights.

  • Women are no longer able to form groups, or organise any events that are ‘women only’. 
  • The specialist services provided to help women as a result of Male Violence are no longer able to be ‘women only’.
  • The political representative role of Womens Officer is no longer reserved for ‘women only’.
  • Participation in womens sports is no longer restricted to ‘women only’.
  • Separate spaces that protected the privacy and dignity of women, like toilets and changing rooms, are no longer ‘women only’.
  • Convicted women are no longer able to be housed in prisons that are ‘women only’.
  • Women have even lost the word woman, as a newly introduced law extended the definition to include others and is therefore no longer ‘women only’.

The aim to be Trans Inclusive may have started out with good intentions, but what has actually been happening throughout this process has been the steady erasure of the group formerly known as Women.


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