Does implementing single-sex spaces and services amount to discrimination?

Guidance on implementing single-sex spaces (such as toilet facilities) was recently published by the Equality and Human Rights Commission (“EHRC”).

In explaining the permitted sex and gender reassignment exceptions found in the Equality Act 2010, the EHRC have advised how service providers can make decisions and implement policies, in accordance with the law, regarding separate services that are offered to men and women including in organisations such as:

• hospitals;
• retailers;
• the hospitality sector; and
• sports clubs.

The guidance explains that organisations are able to legally limit services to single sexes so long as the reasons for limiting the services are justified and proportionate. Alternatively, organisations may choose to open up their services to all groups regardless of their sex.

The affect on UK employers

In accordance with the Equality Act, employers must not discriminate against employees because of the protected characteristic of sex or gender reassignment. However, the Equality Act provides exceptions to this allowing organisations to lawfully exclude, limit or modify access to certain groups in various situations.

In excluding, limiting or modifying services, employers must ensure that the reasons for providing services in a certain way are a proportionate means of achieving a legitimate aim, whilst including the rights and needs of all users, including trans people. These reasons can include the need to:

• ensure health and safety;
• prevent trauma;
• promote privacy; and/or

In considering altering any services, employers should have regard to the Equality Act and the practical guidance that has been issued by EHRC (which can be found here) in order to meet their legal obligations as well as to mitigate the risk of potential claims.

For further advice regarding discrimination law, please contact our Employment Team.