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15/11/2021

Hard cases make … useful law. Can trans people lawfully be excluded from single and separate sex services? Robin White

News, Employment & discrimination

Introduction

To mark Transgender Awareness Week, I have been completing the second update to ‘A Practical Guide to Transgender Law’ and it seemed to me that the case of R (on the application of Authentic Equality Alliance) v Commission for Equality and Human Rights [2021] EWHC 1623, handed down on 6 May 2021 bore some further comment.

Sometimes it takes a determined or perhaps obstinate litigant to prompt courts to consider propositions which less brave souls might leave alone.  For example, the landmark judgment in Taylor v Jaguar Land Rover would not have been obtained without the employer pushing on with its defence long after many involved on the other side thought it was as hopeless – as it proved.

Ann Sinnott, the directing mind of the ‘Authentic Equality Alliance’, certainly does not lack conviction or determination, particularly where she perceives that the advancement or accommodation of the rights of transgender individuals conflicts with the rights of natal women.  She resigned her position as a Cambridge City Councillor after that body published policy documents allowing, in her view, too free access by trans women to womens’ facilities managed by the Council.

She subsequently established an organisation (or at least a website) called ‘Authentic Equality Alliance’, set up as a Community Interest Company.  It certainly shared her negative view of trans women, regularly publishing links to any media stories about trans women convicted of any crime.  It was not known for drawing attention to trans women making positive contributions to society.

From early on, challenge to guidance given by the Equality and Human Rights Commission (‘EHRC’] was a theme.  Ms Sinnott was successful in identifying some errors in Commission guidance – which were corrected – but she was not satisfied and brought judicial review proceedings.  She found representation from lawyers who have appeared in other cases seeking to restrict the rights of transgender individuals.

The Case

The case was considered in the London High Court by Henshaw J on 6 May 2021 at a ‘permission’ hearing.  This is a preliminary stage to determine whether a judicial review can proceed to a full hearing.  It focused on the statutory Code of Practice ‘Services, Public Functions and Associations’ published by the EHRC as long ago as 2011 and in particular the 4 paragraphs entitled ‘Gender Reassignment Discrimination and Single and Separate Sex Services’ (paras 13.57 – 13.60).  There does not seem to have been any previous challenge to this part of the Code.

The case is remarkable, amongst other things, for the spectacular way it failed at the ‘permission’ stage.  Henshaw J was in no doubt and did not mince his words.  He found that ‘none of [the alleged failures by the EHRC] arguable’, aspects of the application to be ‘clearly wrong in law’, the Applicant’s position to be wrong ‘beyond argument’ and other points to be ‘untenable’.  None were allowed to proceed to a full hearing.  What were the propositions which failed so badly?

Firstly, it was contended that, a trans woman without a Gender Recognition Certificate should be treated as male for Equality Act purposes and ‘proportionate means of achieving a legitimate aim’ did not come into it.  The judge rejected this as failing to consider indirect discrimination.

Secondly, the fact that some trans women might feel able use male toilet facilities and in some places gender-neutral facilities might be available was not an argument justifying general exclusion of trans women from female facilities.  A greater proportion of trans women would be distressed by such a suggestion, and that made the proposition unarguable.

Thirdly, the judge found that the Applicant’s propositions conflated sex discrimination and gender reassignment provisions in arguing that exclusion of trans women would always be justifiable.

Lastly, the judge considered the particular parts of the EHRC Code of Practice which the Applicant singled out for especial criticism.  This included guidance that strong reasons are required to treat trans people differently in the provision of services from non-transsexual persons of their acquired gender and exceptional reasons would be required for a denial of service.  The guidance also made plain that a service provider can have a policy but it has to be applied on a case-by-case basis.  The judge noticed that no evidence had been brought before him of the guidance giving rise to difficulties of application by service providers or that was liable to mislead or had misled service providers in a way to place women and girls at risk, at all.

What do we draw from the case?

The case helpfully supports the guidance given in the Code on the provision of single (or separate) sex services to populations including trans people as being:

  1. a starting point that trans people should be included consistent with their affirmed gender;
  2. that possession (or not) of a GRC is irrelevant;
  3. that any exclusion must be a proportionate means of achieving a legitimate aim;
  4. with strong evidence required for separate provision of service to a trans person, and exceptional evidence for denial of service.

All useful principles clear to service providers.

Robin Moira White

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Robin White

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