LGBT+ History Month: transgender inclusion within single-sex settings – legal issues facing the domestic abuse charity sector

Trans inclusion is a complex subject that poses challenges for sectors founded on a binary division of gender. Many women's domestic abuse shelters and charities rely on the single-sex exemption ("SSE") in the Equality Act 2010 (the "Equality Act") to provide services and certain employment roles solely to women. Whilst historically focused on supporting women and children who have been abused by men, women's services report that they have employed and supported trans women for years. However, a lack of clear legal definitions and very few cases in the area, as well as an increase in transphobic media reports and narratives, has meant that many survivor organisations are increasingly concerned about being challenged if they want to be openly inclusive of trans individuals.

This article provides guidance to domestic abuse organisations that want to be inclusive to trans individuals by analysing the law in this area.

Whilst ideally every survivor of sexual and domestic abuse would be able to access support, funding cuts and resource shortages mean the sector is already having to turn huge numbers of survivors away. Any proposal to stretch services further to support trans women is therefore extremely charged.

Trans women make up a small proportion of reported abuse survivors. However, Stonewall's 'LBGT in Britain: Trans Report' found that a staggering 28% of trans people in a relationship in 2022 have faced domestic abuse from a partner. Media publication house gal-dem conducted an investigation into attitudes towards trans inclusion in the domestic abuse sector in February 2021, and found a 'hostile landscape' exists for trans survivors of abuse, and that transmisogyny is rife throughout the sector.

The Law: The Equality Act

The law in this area centres around the Equality Act, which protects individuals from discrimination and harassment based on protected characteristics.

Sex and gender reassignment are both protected characteristics under the Equality Act. The Scottish Supreme Court confirmed last year, in a Judicial Review challenge by For Women Scotland, that "sex" does not mean biological sex, and it certainly includes trans women with a Gender Recognition Certificate ("GRC"). The position as regards trans women without a GRC is less certain, as there is no case law directly on the point, but legal experts consider that if sex does not mean biological sex, then those who have successfully lived in their affirmed gender for a period of time should be of the 'sex' that gender implies.

The position as regards non-binary people is more difficult, as the law has only recently started to acknowledge non-binary individuals. However, an Employment Tribunal found in September 2020 found that non-binary individuals come within the definition of gender reassignment, because they have moved away from their birth sex in their gender expression.

Generally, a service provider must not discriminate in its provision of services to a person because of a protected characteristic. However, there is an exemption which allows SSSPs to discriminate based on sex in certain circumstances. A similar exemption exists for discrimination based on gender reassignment. The exemption in the Equality Act allows SSSPs to provide services: (a) only to one sex; (b) separately to each sex; and (c) differently to people of each sex.

To rely on the SSE under the Equality Act, an organisation must be able to show a relevant condition applies, and that the SSE is a proportionate means of achieving a legitimate aim (or wording to the same effect).

The relevant conditions are:

1. Only people of that sex need the service.
2. Providing the service jointly to both sexes would not be sufficiently effective.
3. The level of need for the services makes it not reasonably practicable to provide separate services for each sex.
4. The service is provided at a hospital or other place, where users need special care, supervision or attention.
5. The service is likely to be used by more than one person at the same time and a woman might reasonably object to the presence of a man (or vice versa).
6. A person might reasonably object to the service user being of the opposite sex because the service involves physical contact.

In April 2022, the Equality and Human Rights Commission ("ECHR") published a guidance document for SSSPs on the provisions related to sex and gender reassignment in the Equality Act.

Case Law

There is limited case law in this area and a lack of clarity about how the law applies to organisations wanting to include or exclude trans and/or non-binary people from their services. For example litigation initiated in 2022 on behalf of a rape survivor against Survivor's Network, a rape crisis charity, has been labelled a "test case" in media reports. A rape survivor, "Sarah", is suing Survivor's Network for not providing a group therapy session solely for women who were assigned female at birth, or "natal women" as they are sometimes referred. The only group therapy available was inclusive to all women, including trans women. If the matter proceeds to trial, the judgment should provide answers as to whether SSSPs are obliged to provide services that exclude trans women without a GRC.  

In March last year, in a case involving a Christian doctor, Dr Mackereth, the Employment Appeal Tribunal confirmed that the dismissal of an employee for refusing to follow his employer's policy to address service users by their preferred pronouns was not discriminatory. The Tribunal was satisfied that the employer's policies and practices were “necessary and proportionate means of achieving their aims… to ensure transgender service users were treated with respect and in accordance with their rights under the EqA, and to provide a service which promoted equal opportunities". This focus "on the needs of potentially vulnerable service users” was applied consistently to any worker, and so Dr Mackereth's claim for discrimination failed.

Practical Advice to SSSPs

When developing any policy in this area, organisations should reflect on these six key points:

Conclusion

To add clarity in what can be a sensitive area, we recommend developing a policy and making clear to all staff and service users whether you are trans inclusive. Should an issue or complaint arise, listen to any particular needs a service user has, and consider whether there are practical ways to accommodate them (e.g., individual sessions rather than group sessions). If you have concerns, speak to your team and your advisers early, before making any public statements, in order to try to prevent costly litigation and reputational damage.

As we celebrate LGBT+ History Month, we hope that you will take the time to consider how you are supporting the trans and wider LGBTQIA+ community.

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