How the UK’s new single-sex space guidance will impact service providers

The government laid an updated code of practice (‘the Code’) for services, public functions and associations before parliament in late May, to reflect changes in equality laws since 2011 – including last year’s Supreme Court ruling in the For Women Scotland case.

The Code, drafted by the Equality and Human Rights Commission (EHRC), does not impose legal obligations, nor is it an authoritative statement of the law: only the courts and tribunals can provide such authority. However, the Code can be used in evidence in legal proceedings brought under the Equality Act 2010 and, in practice, many organisations are likely to view it as the most reliable guide for managing legal risk. It is also important to bear in mind that it is the Services, Public Functions and Associations Code being updated, and not the Employment Code. 

In a workplace context, employers have a duty, under health and safety legislation, to provide access to single sex toilets, changing rooms and washing facilities unless they are separate lockable rooms. There is no equivalent obligation for service providers, and so the Code does not address this issue directly. However, the Code is likely to provide a guide to the EHRC’s view of employment issues going forward. The media attention the Code has received could also trigger employees to raise issues regarding access to facilities.

What is clear is that the Code does not suggest that there should be a mandatory approach or outcome in specific settings, contrary to what much of the commentary it has generated suggests. The Code itself consistently underscores that proportionality, context and a fact-specific analysis remain fundamental to assessments under the Equality Act 2010.

What does the Code say?

Under the Equality Act, the default position is that services should be provided without discrimination. 

Provision of separate-sex or single-sex services is an exception to that general rule. The Code makes it clear that a service provider must first meet one of the statutory conditions justifying separate-sex provision. 

In particular, it may be lawful to offer separate-sex services where a combined service for men and women would be less effective, and providing services separately is a proportionate means of achieving a legitimate aim. 

If these criteria are not met, offering separate-sex services will likely amount to unlawful sex discrimination.

The Code states that “when providing a separate or single-sex service, a service provider… must be able to demonstrate that doing so is a proportionate means of achieving a legitimate aim”. This will require a “balancing exercise”, including consideration as to “whether the disadvantage to trans people, and any other people who may be disadvantaged, outweighs the benefits of achieving the legitimate aim”.

The needs of potential service users include the specific needs of people with different protected characteristics beyond sex, such as older people, disabled people and those who observe particular religious practices. For example, Muslim people may have a particular need for separate-sex services to observe the requirements of their faith.

In conducting this balancing exercise, providers should consider whether there is a less intrusive option than excluding trans people which would be proportionate. The Code suggests that a provider seeking to operate a separate-sex service could consider whether a mixed-sex service, lockable self-contained spaces or other alternative arrangements could achieve the same legitimate aim with less discriminatory impact.

The Code states that, in many cases, it will be proportionate to take a holistic approach to service provision by providing a mix of services which may include both separate or single-sex services and mixed-sex services. A mixed-sex service must be open to all service users. It also points out that the mix of services in terms of the size of the separate or single-sex services and of the mixed-sex services should reflect the needs and relative numbers of service users with different needs. 

In every case, it is good practice to record the reasons why a decision has been taken to provide or not to provide a separate or single-sex service, along with any supporting evidence. 

What the Code does make clear is that if a service is provided only to women and trans women or only to men and trans men, it is not a separate-sex or single-sex service under the Equality Act 2010 and a service provider will no longer be able to rely on the single and separate space exemption to defend a claim for unlawful discrimination. 

It states that a service like this is “very likely” to amount to unlawful sex discrimination against the people of the opposite sex who are not allowed to use it. A service which is provided to women and trans women could also be unlawful sex discrimination or lead to unlawful harassment against women who use the service. Similar considerations would apply to a service provided for men and trans men.

Similarly, if a service provider decides only to provide a service on a mixed-sex basis, without any separate or single-sex option, this could be direct or indirect sex discrimination against women who use the service or lead to unlawful harassment against them. This is most likely in contexts where women’s safety, privacy and/or dignity would be at risk in the service if it was shared with men - for example, whether women are likely to be in a state of undress, or if there will be limited ability for women to leave or to choose an alternative service. 

Where factors like these are present, the benefits of offering a separate or single-sex service will be likely to outweigh other considerations in the balancing exercise.

The Code also raises the possibility of double exclusion. A legitimate aim for excluding a trans person from a separate or single-sex service for their own sex might be to prevent discomfort or distress for other service users, particularly where other service users could reasonably object because they are worried about sharing a single or separate-sex service with someone who appears to be of the opposite sex. It also states that this will depend on all the circumstances, including the nature of the service in question and the extent to which the trans person presents as the opposite sex.

For this reason, the Code recommends that a service provider should only consider doing this on a case-by-case basis. It points to the availability of suitable alternative services and highlights that in the case of services which are necessary for everybody, such as toilets, it is very unlikely to be proportionate to put a trans person in a position where there is no service that they are allowed to use and this is “very likely to amount to direct or indirect discrimination because of gender reassignment”.

The Code acknowledges the practical difficulties inherent in policing access to single or separate-sex facilities.  It recognises that “it is unlikely to be either practical or appropriate to approach any particular individual to make enquiries about their sex” and “it is not always possible to be sure of a person’s sex from their appearance”. It also indicates that it could be inappropriate to ask for evidence of someone’s sex given that “sex on passports and driving licences may be changed with or without a Gender Recognition Certificate (GRC), and birth certificates may reflect the acquired gender of someone who has a GRC”.

There is also an acknowledgement that it will usually be helpful and often necessary for service providers to have a policy setting out whether, and if so how, separate or single-sex services will be provided. However, it goes on to say that “individual circumstances may, exceptionally, require a different approach to that set out in a policy” and recognises that “the law in this area is complex, and it is not certain that it is permissible to make exceptions to allow people of the opposite sex to use a separate or single-sex service.

“It is likely, however, that this will be permissible if doing so adds a necessary flexibility without undermining the aim of the service and / or contributes towards achieving the aim”.

Practical steps for service providers

Notwithstanding the complexity that the Code presents, there are practical steps which service providers can take now.

The starting point must be a structured audit of existing policies, practices and any external communications relating to single-sex or separate-sex service provision. Where policies state or imply that access to single-sex spaces is determined by gender self-identification, they will need to be amended.

At the heart of the Code is the requirement for a documented proportionality assessment for each service or facility. This will need to consider the legitimate aim being pursued; the impact of the proposed approach on trans people; the needs of all service users across all relevant protected characteristics, including women, disable/d people, older people and those who observe particular religious practices; and whether less restrictive alternatives are available. The Code itself emphasises the importance of recording the reasons for decisions taken, together with any supporting evidence. This contemporaneous record-keeping will be essential for any organisation facing a legal challenge.

Service providers should also take care to develop or update written policies, whilst building in explicit mechanisms for case-by-case review. Any policy must be anchored to the legitimate aim it is designed to serve, so that any departure from it can be assessed against that aim.

Organisations should equally resist any temptation to simplify their offering by providing only mixed-sex services where that might expose women to safety, privacy or dignity risks, as the Code makes clear this could itself constitute unlawful sex discrimination or harassment. Where facilities are necessarily shared, for example in leisure, healthcare or hospitality settings, the provision of individual lockable self-contained units represents the most practical solution to managing obligations across multiple protected characteristics. Being aware of the practices of similar organisations providing similar facilities may be helpful too. If similar organisations are making similar assessments this may make an alternative approach more difficult to justify.

Staff training is also essential. Teams will need guidance on when, and how sensitively, to raise questions about sex; on data protection and Gender Recognition Act obligations; and on the risk of harassment claims arising from poorly handled interactions with both trans service users and other service users.

How someone is treated once they raise a complaint about access to facilities is also extremely important and fairness to all is essential.

The EHRC has confirmed that it will update its Employment Code in due course, and the media attention the Services Code has generated is likely to prompt employees to raise concerns about workplace facilities well before that update is published. Employers should brief HR teams now and establish a consistent internal approach, rather than waiting for further formal guidance.

The laying of the Code comes after recent employment tribunals which considered the discriminatory impact on women of trans-inclusive bathroom and changing facilities, two of which found the inclusion to be discriminatory – which opens the door to further case law at appeal level, which will help supplement and clarify aspects of the Code in future.

Ultimately, the Code will not operate as a checklist and service providers should resist treating it as one. What it demands, above all else, is a genuine, structured proportionality assessment - one that takes proper account of the specific context in which a service is provided, the practical alternatives available to meet the needs of all service users, and the circumstances of individual cases where a blanket policy approach may produce disproportionate outcomes.

Critically, organisations would be well advised to engage proactively with their service users in developing their approach, rather than imposing change from the top down. The needs of women, trans people, disabled people, older people and those with religious observance requirements are not necessarily in conflict but balancing them requires a rigorous, evidence-based assessment that is documented, revisited regularly and sensitive to the particular dynamics of each service setting.