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An awareness of equality, diversity and inclusion (EDI) is essential for all organisations. An understanding of legal obligations in regard to the ‘protected characteristics’ defined in the 2010 Equality Act (EA2010) is equally imperative. Due to an inherent potential for conflicts of interest, fairly balancing the rights of EA2010 protected characteristics can be complex, particularly in relation to applying/not applying the EA2010 single-sex exception in service-provision.
As a result of misguidance by official sources – see AEA’s booklet ‘Equality Matters’ for more detail – there is widespread confusion in organisations about the protected characteristics and the single-sex exception – even when equality training has been undertaken.
AEA’s mission is to bring clarity and dispel confusion.
AEA’s Consultancy provides a comprehensive policy appraisal for organisations concerned about potential legal exposure. With complete confidentiality guaranteed, we will work to understand your business needs and aspirations, ensure you have a correct understanding of applicable law, highlight any unlawfulness and flag-up other types of risk.
AEA’s training encompasses:
The 2004 Gender Recognition Act (GRA), the 2010 Equality Act (EA2010) and the interaction between those two legal instruments. EA2010 protected characteristics and the single-sex exception in service-provision. Relevant Articles of the 1998 Human Rights Act. 1992 Workplace (Health, Safety) Regulations. 2021 Forstater v CGD – judgement in this legal case ruled that ‘gender critical’ beliefs are included in the EA2010 protected characteristic ‘Religion and belief’.
How did confusion arise?
- Misguidance from official sources
- Dissemination of misguidance
The Equality and Human Rights Commission (EHRC) was established in law by the 2006 Equality Act as an independent public-body to oversee equalities in the UK.
AEA conducted an examination of EHRC guidance and discovered that, in a large swathe of guidance – aimed at private, public and voluntary sectors – the law was misstated. The legal term for that is ultra vires, which means ‘outside of the law’, and thereby unlawful.
In February 2020, AEA wrote to EHRC. A protracted exchange of correspondence over several months followed. In July and August 2020, EHRC finally corrected some guidance documents – the majority were simply removed from its website. See our updates page for the eventual outcome of this engagement.
Although EHRC brought its guidance within the law, it refused to make a public announcement, nor did it agree to inform key organisations. AEA is the only organisation that was informed.
Ultra vires guidance stood for 10 years. During that time, the guidance was directly accessed many thousands of times. The guidance was also widely disseminated by management consultancies, training agencies, trans-focused training organisations and lobby groups. As a consequence, the misguidance can be seen in the EDI policies of countless organisations.
Thus does confusion reign.
The 30 July 2019 Report from the Women and Equalities Select Committee (WESC) highlighted the existence of widespread confusion within organisations about the EA and the ‘Single-sex exception’.
Women and Equalities Select Committee Report, July 2019
- Refers to the increasing spread of “gender-neutral services in breach of the [EA] public sector equality duty”.
- Recommends that a Code of Practice be drawn up to clearly state
- The EA allows single-sex services in certain circumstances.
- Under what circumstances an organisation can choose to extend those services to the protected characteristic of gender reassignment.
- Recommends changes to (i) allow individuals greater access to legal aid and (ii) strengthen the enforcement powers of the Equality and Human Rights Commission (EHRC), in order that a critical mass of legal actions on the single-sex exception are brought forward to establish precedence and concrete guidance
As can be seen, the WESC Report also recommends that a Code of Practice be drawn up to provide clarity on the single-sex exception. That was met by a categoric refusal by EHRC.
This is a precarious situation for organisations. Those with EDI policies in breach of the law, are exposed and at risk of legal challenge.
To ensure your organisation is delivering for your staff and clients and is not exposed to potential litigation, a review of policies and practices, for service-provision and in the workplace, would be prudent.
