Legal & the Law · Single Sex / Spaces

Gender transitioning, recognition and single sex provisions.

Hilary Burrage

Are the current UK arrangements for single sex services adequate?

Some background: In the UK a change in gender of an adult can be confirmed by a Gender Recognition Certificate, a route to transitioning which has been available since the Gender Recognition Act of 2004, effective in April 2005.

This 2004 Act was brought into further focus by the 2010 Equality Act, which merged together nine main pieces of legislation:

  • the Equal Pay Act 1970
  • the Sex Discrimination Act 1975
  • the Race Relations Act 1976
  • the Disability Discrimination Act 1995
  • the Employment Equality (Religion or Belief) Regulations 2003
  • the Employment Equality (Sexual Orientation) Regulations 2003
  • the Employment Equality (Age) Regulations 2006
  • the Equality Act 2006, Part 2
  • the Equality Act (Sexual Orientation) Regulations 2007.

One important part of the 2010 Act was to identify nine protected characteristics which can be aspects of unlawful discrimination in public situations (work, schools, public services, transport…) under the Act. 

The characteristics that are protected by the Equality Act 2010 are:

  • age
  • disability
  • gender reassignment
  • marriage or civil partnership (in employment only)
  • pregnancy and maternity
  • race
  • religion or belief
  • sex
  • sexual orientation.

Citizens Advice explains that the Act also protects you if people in your life, like family members or friends, have a protected characteristic and you’re treated unfairly because of that. This is called discrimination by association. For example, if you’re discriminated against because your son is gay.

Nonetheless Sections 734 and 735 of the 2010 Act provide for Single Sex Services to be 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.

In each case, the separate provision has to be objectively justified.

These exceptions also cover public functions in respect of the “back-room” managerial, administrative and finance decisions which allow such single-sex services to be provided.

So is the law being observed in the spirit in which it was intended?

And, if not, should the application of the law, or alternatively the law itself, be changed? Over to you…

[Read and discuss more about Single Sex Spaces and the Law.]