Women only spaces and proposed changes to the Equality Act and Gender Recognition Act

This briefing analyses proposals made by the Parliamentary Women and Equalities Committee Transgender Equality Inquiry which would remove protections for women only spaces. It first sets out the need for women only spaces before going on to describe the current legal situation. It then details the proposals for changes to the law that have been made by the Committee and identifies the ways in which these would reduce the protection for women only spaces and in some cases risk women’s safety.

The importance of women only services and spaces

A research report by the Women’s Resource Centre found that women only services and spaces provided women with physical and emotional safety which made them feel supported, comfortable and able to express themselves in a way they could not in mixed spaces.

In a survey of 1000 women carried out for the report the Women’s Resource Centre found that:

• 97% of respondents stated that a woman should have the choice of accessing a women-only support service if they had been the victim of a sexual assault.
• 56% of women would choose a women-only gym over a mixed gym, 28% of women would choose to go to a mixed gym (16% didn’t know).
• The 560 women that would choose a women-only gym cited reasons such as feeling more comfortable, less self-conscious and less intimidated. Respondents stated that they didn’t want men watching them, looking at their bodies or sexually harassing them.
• 90% of women polled believed it was important to have the right to report sexual or domestic violence to a woman (such as a woman Police officer);
• 87% thought it was important to be able to see a female health professional about sexual or reproductive health matters;
• 78% thought it was important to have the choice of a woman professional for counselling and personal support needs.

Transwomen and women only spaces

Many women and women’s organisations welcome transwomen into women only spaces.  However there are circumstances where some organisations believe that it is not appropriate to include transwomen in women only spaces. For example, the prison service places transwomen prisoners with a Gender Recognition Certificate in a women’s prison but not other transwomen prisoners, except in some circumstances. A rape crisis centre may provide helpline or other support to transwomen but conclude that group therapy sessions should not be open to transwomen because other women may be less likely to take part if there is a transwoman in the group. A women’s refuge may decide not to house transwomen in shared accommodation with other women. The law allows for this.

All transgender people should have the right to live their lives without violence, harassment or discrimination and should have the right of access to appropriate healthcare and other services. It is wrong if someone is denied employment, housing or access to services just because they are transgender. Transwomen (and men) who have experienced sexual or domestic violence need access to appropriate services and it is important that these services are available.

However transwomen may have specific service needs that differ from those of other women. There are situations such as women only domestic and sexual violence services where women surviving in crisis may be particularly vulnerable. Some of these women may feel unable to access services provided by or offered jointly to all women including transwomen; this produces a clash with the rights of transwomen to be treated exactly the same as other women.  In such cases when the safety, wellbeing and recovery of women are reliant upon their ability to access services the law has created exemptions to allow for women only services that do not include some transwomen, in some circumstances.  In these situations other services should be provided to ensure that transwomen’s needs are met. This may be through separate services provided by women’s organisations or through specialist services designed to meet the specific needs of transwomen.

The law as it currently stands

The law distinguishes between transgender people who have a Gender Recognition Certificate (GRC) and those who do not have a GRC but still have the protected characteristic of gender reassignment. It does not cover other people who might identify as transgender or trans (for example people who do not define as having a gender, or people who have complex gender identities and identify as both male and female or neither male nor female).

Gender Recognition Act 2004

The Gender Recognition Act allows for a transgender person to be granted a GRC if they are over 18, have been diagnosed with gender dysphoria, have lived as their new gender for 2 years, intend to continue to do so, and apply successfully to the Gender Recognition Panel. There is no need for the transgender person to have had surgery. In such cases:

Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman (Gender Recognition Act 2004 9.1).

However the Equality Act does create exemptions to this in the provision of single sex services (see below).

Equality Act 2010

The Equality Act outlaws discrimination in employment or access to goods or services on the grounds of a series of ‘protected characteristics’ including gender reassignment. Gender reassignment is defined as follows:

A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex (Equality Act 2010 7.1).

Single sex services

The Equality Act allows for single sex services if they are ‘a proportionate means of meeting a legitimate aim’ and if mixed services would be less effective; if a person of one sex might reasonably object to the presence of a person of the opposite sex or if there is likely to be physical contact between the person receiving the service and someone else who might reasonably object. It allows for discrimination on grounds of gender reassignment in provision of single sex services if this is a ‘proportionate means of meeting a legitimate aim’. The Guidance on the Act gives an example specifically relating to women only services:

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 (p157).

 Employment

The Equality Act also allows for certain jobs to be open to members of only one sex if there is a ‘genuine occupational requirement’. This can include specifying a women only job is not open to transwomen as one of the examples in the Guidance for the Act makes clear:

A counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a Gender Recognition Certificate, in order to avoid causing them further distress (p167).

Limited exemptions

These are not general exemptions for all single sex services. The EHRC guidance on the law states that:

A service provider may have a policy about providing its service to transsexual users, but this policy must still be applied on a case-by-case basis. It is necessary to balance the needs of the transsexual person for the service, and the disadvantage to them if they are refused access to it, against the needs of other users, and any disadvantage to them, if the transsexual person is allowed access. To do this may 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.

An organisation that provides a women only service that is not open to transwomen must be able to justify this on the specific needs of their service users and show that the decision is proportionate to the situation. A women only service cannot simply decide not to provide services to transwomen; they must be able to demonstrate that the decision is legitimate and proportionate. The EHRC also states that:

Where a transsexual person is visually and for all practical purposes indistinguishable from someone of their preferred gender, they should normally be treated according to their acquired gender unless there are strong reasons not to do so.

Prisons

The Equality Act, including the exemptions for single sex services, applies to prisons. The Ministry of Justice has published guidelines on The Care and Management of Transgender Prisoners which state that ‘An establishment must permit prisoners who consider themselves transsexual and wish to begin gender reassignment to live permanently in their acquired gender’ but that ‘In most cases prisoners must be located according to their gender as recognised under UK law’.  This means that in most cases transwomen prisoners without a GRC would be housed in a men’s prison while transmen without a GRC would be housed in a women’s prison. However there is some flexibility to allow transgender prisoners without a GRC to be housed in a prison which matches their gender identity where a case conference and risk assessment deem this appropriate. For those with a GRC:

A male to female transsexual person with a gender recognition certificate may be refused location in the female estate only on security grounds – in other words, only when it can be demonstrated that other women with an equivalent security profile would also be held in the male estate.  In such circumstances she will be considered a female prisoner in the male estate and must be managed according to PSO 4800 Women Prisoners.

The definition of ‘transsexual’ in these guidelines is broader than that in the Equality Act as it covers all those ‘who consider themselves transsexual’ rather than being limited to those who are preparing to, currently undergoing or have under gone gender reassignment.

These guidelines are currently under review.

Proposals for changes to the law

This briefing examines proposals to change the law made by the Women and Equalities Committee. It focuses on three proposals:

• To ‘bring forward proposals to update the Gender Recognition Act, in line with the principles of gender self-declaration that have been developed in other jurisdictions’;
• That ‘the protected characteristic in respect of trans people under the Equality Act should be amended to that of “gender identity’;
• That ‘the Equality Act be amended so that the occupational requirements provision and/or the single-sex/separate services provision shall not apply in relation to discrimination against a person whose acquired gender has been recognised under the Gender Recognition Act 2004’.

1. Amending the requirements of the Gender Recognition Act

The Committee recommends that:

Within the current Parliament, the Government must bring forward proposals to update the Gender Recognition Act, in line with the principles of gender self-declaration that have been developed in other jurisdictions. In place of the present medicalised, quasi-judicial application process, an administrative process must be developed, centred on the wishes of the individual applicant, rather than on intensive analysis by doctors and lawyers (p14).

The Gender Recognition Act currently requires a diagnosis of gender dysphoria and evidence that a person has lived for two years as the gender with which they identify before they can apply for a gender recognition certificate. There is no requirement to have sex reassignment surgery in order to apply for a GRC. There is a strong case for amending the Gender Recognition Act to cover people with intersex conditions, who are not currently covered by the Act.

The Committee’s proposed amendments to the Act would mean that someone who was born male and had gone through no social or medical transition of any kind could legally declare themselves to be a woman, through a simple administrative process. Since there is no way to tell if someone genuinely identifies as a woman, this would include people who were born male, actually identify as a man, but claim to identify as a woman.

Both the British Psychological Society and the British Association of Gender Identity Specialists presented evidence to the Committee that their members were reporting a number of cases in prisons where male sex offenders were ‘falsely’ claiming to be transgender. According to the British Psychological Society the reasons for this were:

• As a means of demonstrating reduced risk and so gaining parole;
• As a means of explaining their sex offending aside from sexual gratification (e.g. wanting to ‘examine’ young females);
• As a means of separating their sex offending self (male) from their future self (female);
• In rare cases it has been thought that the person is seeking better access to females and young children through presenting in an apparently female way.

The British Association of Gender Identity Specialists warned of:

The ever-increasing tide of referrals of patients in prison serving long or indeterminate sentences for serious sexual offences. These vastly outnumber the number of prisoners incarcerated for more ordinary, non-sexual, offences. It has been rather naïvely suggested that nobody would seek to pretend transsexual status in prison if this were not actually the case. There are, to those of us who actually interview the prisoners, in fact very many reasons why people might pretend this. These vary from the opportunity to have trips out of prison through to a desire for a transfer to the female estate (to the same prison as a co-defendant) through to the idea that a parole board will perceive somebody who is female as being less dangerous through to a [false] belief that hormone treatment will actually render one less dangerous through to wanting a special or protected status within the prison system and even (in one very well evidenced case that a highly concerned Prison Governor brought particularly to my attention) a plethora of prison intelligence information suggesting that the driving force was a desire to make subsequent sexual offending very much easier, females being generally perceived as low risk in this regard.[i]

There is no reference to these cases in the Committee’s report.  Nor does the report set out what safeguards could be put in place to prevent this happening more often once applying for a Gender Recognition Certificate became an administrative process of self-declaration. This is deeply troubling for anyone concerned about preventing violence against women. If sex offenders are already falsely claiming to be transgender under the current system, there is a real risk that this pattern may become more widespread once it is possible to obtain a GRC through self certification. If the proposals to reduce the protection in the Equality Act for women only spaces (see below) were also adopted then these people would be legally entitled to enter women’s refuges, rape crisis centres and other places providing support to already vulnerable women.

2. Extending the coverage of the Equality Act

The Women and Equalities Committee has recommended that: ‘the protected characteristic in respect of trans people under the Equality Act should be amended to that of “gender identity” (p27).

The Equality Act does not currently provide protection to transgender or gender variant people who are not proposing to undergo, undergoing, or have undergone the process of gender reassignment (the definition of gender reassignment in the Act). Furthermore, the Act does not cover people ‘who do not identify exclusively as male or female’ or people who do not live permanently within their preferred presenting gender role or intersex people. There are people who were born male and identify as female but have no wish to transition through surgery, hormones or other medical intervention. Some of these people may choose to present as male, while identifying as female. There are others who identify as both male and female, sometimes presenting as male and sometimes as female. A major study of transgender people in the US found that 18% said that ‘they did not want to live full time in a gender other than that assigned at birth’ and concluded that

For many gender non-conforming people, transition as a framework has no meaning in expressing their gender — there may be no transition process at all, but rather a recognition of a gender identity that defies convention or conventional categories. For yet other gender non-conforming people, transition is a meaningful concept that applies to their journey from birth sex to their current identity, which may not be male or female.

The Gender Identity Research and Education Society states that 650,000 people (1% of the population) are ‘gender incongruent to some degree’ (p1) and that of these a fifth might be expected to seek medical treatment for gender dysphoria, based on Dutch research that showed that 19% of men who cross dressed wanted ‘a complete role adaptation’ (p12). This would suggest that the majority of people categorised as ‘trans’ do not wish to permanently transition to live as the opposite gender to their biological sex.

There are two issues here. The first is the right of people who do not exclusively identify or live as male or female to be free from discrimination simply because of their transgender status. For example, if a job was open to both women and men it would be wrong for a person who did not identify exclusively as either to be unfairly discriminated against in the recruitment process. Similarly, it would be wrong for most goods and services that are open to the general community to be denied to a person simply because they did not identify as male or female or identified as both. However in the vast majority of cases people are not discriminated against because of how they identify, but because of how they present, and how they are perceived by others. Employers or service providers may discriminate against somebody they believe to be male who is dressing in clothes that they associate with women for example. This is a form of sex discrimination, based on the assumption that certain clothes and hairstyles or the wearing of make-up are only appropriate for women. Protection against this sort of discrimination should exist regardless of whether or not the person concerns identifies as a woman.

The second, more complex, issue relates to employment, goods or services that are only open to one sex.  The law protects the rights of someone with gender dysphoria who wishes to transition to live permanently as a woman to be treated as a woman in most circumstances, and to be legally recognised as a woman through applying for a Gender Recognition Certificate. However should someone who was born male, sometimes or most of the times presents as male, but identifies as female, automatically be entitled to access services aimed at or reserved for women, as in the case of this person who presents as male and identifies as female who responded to an invitation to women to ask questions at a meeting? For example, if an employer identifies that there is a problem with a lack of women in senior positions in their organisation and organises a programme to support women employees into management positions, should a person who was born male and presents as male professionally be allowed to take part in that programme because they sometimes identify and present as female?  Should an organisation that provides services to women victims and survivors of violence be obliged to provide services to a person who sometimes identifies as male because they also sometimes identify as female? If the organisation does provide such a service would they be obliged to provide it at times when the person was presenting as male? How would that impact on the willingness of the other women who need those services to access them? This question becomes particularly problematic when combined with the proposal to remove the exemption in the Equality Act for single sex services.

3. Removing the exemption for single sex services in the Equality Act

The Committee recommends  that:

The Equality Act be amended so that the occupational requirements provision and / or the single-sex / separate services provision shall not apply in relation to discrimination against a person whose acquired gender has been recognised under the Gender Recognition Act 2004.

This proposal would prevent women only services from excluding transwomen who had a GRC even if that meant that other women would not access the service, or if this risked women’s safety. It is clear from the EHRC advice in this area that the current exemption in the Equality Act does not permit a blanket ban on transgender people accessing single sex services. Any policy has to be proportionate and relate to specific circumstances such as where the inclusion of transgender people might prevent others from accessing the service.

Taken together with the proposals to change the Gender Recognition Act this would mean that women only services would be obliged to offer services to people who were born male and presented as male, so long as they certified that they identified as women, regardless of the impact that this would have on other women accessing their services.

There are particularly serious implications for residential settings such as women’s refuges and women’s prisons.  These services are segregated by sex in part to protect women from violence from men. This is not because all men are violent but because men are significantly more likely to commit acts of violence than women. A major Swedish study of all transsexual people in Sweden over thirty years concluded that transwomen ‘retained a male pattern regarding criminality’ including for violent crime. This suggests that transwomen are as likely to commit acts of violence as men, meaning that the risk they pose to women is the same.

In addition, there is a real risk of violence from men who may not identify as women, but either dress in women’s clothes or present as transgender in order to facilitate offending.  The evidence that this is already happening in prisons is set out above. There have already been cases where men have presented as women or claimed to be trans in order to access women only services and gone on to abuse women. Examples include Christopher Hambrook, who was convicted in 2014 for sexual assaults on women in two shelters in Toronto which he had entered having claimed to be a transwoman; Madison Hall, a convicted murderer who was transferred to a women’s prison after saying he identified as a woman and went on to rape several women inmates; and Joel Hardman, who was arrested after disguising himself as a woman in order to enter women’s toilets in Birmingham. It is often claimed that there is no evidence that transwomen have attacked women in women only spaces despite a large number of well documented cases. It is not clear whether the offenders in these cases actually identified as women or were men who dressed as women or claimed to be trans to facilitate offending. However under the proposals made by the Women and Equalities Committee this is irrelevant, since anyone who claims to identify as a woman could legally become one and have full access to women’s services.