The Equality and Human Rights Commission (EHRC) has published its final guidance on how service providers, associations, and those providing public functions are expected to apply equality law following recent developments in the courts.

While an update was already overdue after a decade, the guidance attracted significant attention (and controversy) after the EHRC announced that it would be updated to reflect the judgment in the For Women Scotland case at the Supreme Court. As we discussed here, the Court ruled that, for the purposes of interpreting the Equality Act 2010, references to “woman”, “man” or “sex” referred to biological sex.

After failed attempts to delay consultation on the new guidance, a draft version was published last year (discussed here). However, subsequent delays led to a period in which organisations were left in a state of limbo, unsure whether further changes might be made to the final guidance, and therefore pressed pause on any changes to their own internal policies.

Now, the guidance has been published in final form and laid before Parliament. As for its contents, an update after 10 years will naturally cover a range of areas to reflect existing law. However, the provisions responding to the For Women Scotland judgment will no doubt be the most closely scrutinised, particularly relating to the provision of separate and single-sex services. In that regard, the guidance includes the following provisions:

• If a service decides to have a separate or single-sex service and allows trans people to use the service intended for the opposite sex, the service will no longer be a separate or single-sex service under the Equality Act 2010. According to the EHRC, it is also very likely to amount to unlawful discrimination against others.
• It will not be unlawful discrimination because of gender reassignment to prevent, limit or modify trans people’s access to the service for their own sex, as long as doing so is a proportionate means of achieving a legitimate aim.
• It might be a legitimate aim for excluding a trans person to prevent discomfort or distress for other service users. Service providers should consider whether other service users could reasonably object because they are worried about sharing a single or separate-sex service with someone who appears to be of the opposite sex. That will depend on all the circumstances, including the nature of the service in question and the extent to which the trans person presents as the opposite sex. For this reason, a service provider should only consider doing this on a case-by-case basis.
• The service provider should consider whether there is a suitable alternative service for the trans person to use. In the case of services which are necessary for everybody, such as toilets, it is very unlikely to be proportionate to put a trans person in a position where there is no service that they are allowed to use.

Recognising the complexity of this area – and the debate it continues to provoke – the EHRC provides a range of practical examples intended to help organisations apply the guidance in practice.

The guidance will be laid before Parliament for 40 days, after which (subject to the statutory approval process) it will come into force.

To read it in full, click here.