MBM response to EHRC guidance for providers of separate and single-sex services

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We welcome the new EHRC guidance for providers of separate and single-sex services. The guidance helpfully provides more detailed discussion of the issues, compared to previous EHRC guidance, and more examples of cases where services or activity are legitimately single sex. We welcome the clear guidance that providers need to take into account all users’ needs, and the encouragement to look at creative solutions, such as additional provision, where space and resources permit.

The guidance makes clear that there is no general right of access to services based on self-declared gender identity, as has become widely misunderstood. While this guidance relates only to services and spaces, some principles here read across helpfully to the rules for single sex jobs, sport and measures such as all women short lists, which still lack updated guidance.

Consistent with the recent judgment by the Inner House of the Court of Session, the guidance states that sex under the Equality Act 2010 means sex as registered at birth, and that possession of a Gender Recognition Certificate (GRC) should not be treated as relevant when it comes to access to single sex services and spaces. The EHRC does not however discuss the implications of its position stated elsewhere that obtaining a GRC allows a person to bring direct discrimination claim, if excluded from a single sex service. We discuss the uncertainty round the effect of a GRC here.