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:
- Only people of that sex need the service.
- Providing the service jointly to both sexes would not be sufficiently effective.
- The level of need for the services makes it not reasonably practicable to provide separate services for each sex.
- The service is provided at a hospital or other place, where users need special care, supervision or attention.
- 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).
- 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.
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:
Trans women can be included in spaces that rely on the SSE without threatening your status as a SSSP
Whilst the SSE provides the flexibility to develop a policy that restricts access to trans survivors if the conditions in the Equality Act are met, SSSPs should not feel pressure to rely on the exemption because of a fear of litigation. Utilising the SSE to exclude trans women should not be the starting point for SSSPs. The ECHR guidance recommends "less restrictive options" should be taken where possible. Instead, a policy around this issue can help pre-empt disputes and encourage creative solutions.
Work with service users and the trans community to develop a clear policy regarding the availability of your services to trans women
Consult with service users and the trans community to discuss their feelings and needs. No one who has survived abuse should feel unsafe in an environment that exists to support them. By having honest and open conversations with service users, you can reduce the chances of situations arising where a service user experiences further anxiety, discrimination or abuse. Be flexible when considering solutions to these issues. Consider whether a partnership could be established with other local SSSPs and/or LBGTQIA+ organisations to fund trans women's costs for shelter and support should you decide it is appropriate for your organisation to exclude trans women from some or all services.
Keep up with legal developments, including legislation and case law
Review any exclusions and make sure they are in accordance with the Equality Act exemption. Remember, the exclusion of trans women must be shown to be a proportionate means of achieving a legitimate aim. If this cannot be proved, it might be unlawful.
Collate a list of other available services
Provide alternatives for both those who do not wish to access a service open to trans women and for trans individuals who may feel unsafe or not qualify for your support. If there are none locally, this may make it more difficult to justify that any exemptions are a proportionate means of achieving a legitimate aim. You should consider what resources you have to offer support and whether there are any simple changes you could make to meet users' needs. This could include considering new funding opportunities such as partnerships with organisations who are looking to support LGBTQIA+ individuals.
Remind trans individuals of their rights
Trans and cis service users are entitled not to provide you with sensitive personal information, and you should consider what you really need to ask in order to provide support services. For example, you do not need to know whether an individual has a GRC to make a decision; you only need to decide if your action is proportionate in achieving a legitimate aim.
Ensure all employees' views are protected
It is important that you listen to and respect all people's views. Gender critical beliefs are a protected philosophical belief under the Equality Act, following the decision in Forstater. This is a sensitive, complicated issue and people are entitled to reach their own view on the subject. The Mackereth decision means that requiring workers to follow a language use policy does not violate their right to gender critical beliefs even if the two conflict.
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.
A person whose gender identity does not correspond with the sex registered for them at birth.
Gender critical beliefs
The view that someone’s sex - whether they are male or female - is biological and immutable and cannot be conflated with gender identity.
Gender Recognition Certificate (GRC)
A GRC is a legal document which enables trans people to change their birth certificate and sex marker with HMRC. It can also be used to amend a marriage or civil partnership certificate to reflect their true identity.
Is defined by the Equality Act as being a reference to whether a person is a man or a woman. Scottish case law confirms that it is not limited to legal sex, nor sex assigned at birth, but does include a trans person with a GRC.