Anti-trans discrimination and the Explanatory Notes to the Equality Act

Can a group counselling session simply kick out any trans women, because the organisers think the cis women would not want them there?

Having lost on the meaning of the Equality Act, the anti-trans campaigners are now arguing on the basis of the explanatory notes. The lies they tell each other have a real world effect, inflaming resentment against trans women, and at worst violence against us. The explanatory notes do not say what the haters claim, but then, the statute did not say what the haters claimed either, and that did not stop them.

Under schedule 3 paragraph 28, a women’s service can exclude trans women if it is “a proportionate means of achieving a legitimate aim” (PMOALA). This is a phrase used over and over again, with a great deal of case law defining it. There is an explanatory note saying any exclusion has to be “objectively justified”, which puts it in slightly less formal language but adds nothing. The note explains that this replaces a provision in the Sex Discrimination Act, but does not say which, so is of little use. That provision was added by regulations, as in 1975 the Sex Discrimination Act did not mention trans people. A note further on says that a halal butcher does not have to sell kosher meat, but only a Jew can sell kosher meat.

Then the note gives an example:

A group counselling session is provided for female victims of sexual assault. The organisers do not allow transsexual people to attend as they judge that the clients who attend the group session are unlikely to do so if a male-to-female transsexual person was also there. This would be lawful.

The organisers in this case don’t bother asking any service users, they just make a decision themselves. They have a set rule against trans women which they apply if any trans woman asks to join. They think no cis women would attend, rather than thinking possibly one or two cis women would cease attending. It all seems fairly unlikely. Many cis women are trans allies. Acting for the service, I would want better evidence to exclude a trans woman than that.

There has to be a legitimate aim. The organisers’ aim would be to support cis women recovering from sexual assault, but the service users might continue coming and value the trans woman’s contribution. Even if one of the cis women is a transphobe, and would not attend because there was a trans woman there, it is still unlawful discrimination to choose the cis woman over the trans woman. If no cis woman service user would attend, the provider should still try to persuade them to accept the trans woman.

This is a service for survivors of sexual assault. Clearly a toilet or changing room should accommodate trans women.

Explanatory notes are written by civil servants. The Act has been debated in parliament, and amendments considered in committee. The notes have not. Imagine an executive officer having ten minutes to think of an example, and it getting a cursory read-over from a higher executive officer. The aim might have been to show that nothing less personal and intimate, no service users less vulnerable, would justify exclusion. Nevertheless where the statute is ambiguous, or if it can cast light on the “scene” of the statute, the notes might be used as an aid to help interpret the Act.

All the example shows is that where women are talking about something particularly personal, where traumatised women are vulnerable, there might in theory be an argument for excluding a trans woman. But that is only relevant if the statute is ambiguous. There is a great deal of case law on the meaning of PMOALA. A common example is requiring an engineering degree for job applicants. That would be indirect discrimination against women, because more men than women have an engineering degree. PMOALA is a defence if the employer can prove it: it would have to be a legitimate aim, to prove that the applicant had knowledge necessary for the job, and it would have to be a proportionate means, so that the knowledge could not be demonstrated any other way.

So you would have to balance the needs of the vulnerable trans woman with the needs of any cis woman who objected. If the organisers think cis women might not like to be in a group with a trans woman, rather than excluding the trans woman the alternative means is to speak to the cis women and explain to them that the trans woman is not a threat.

So it is not the case that it is “appropriate for spaces to be exclusively reserved to those born female”, as an anti-trans campaigner said in the New Statesman this week. He claimed this was according to the Equality Act, even though his interviewee told him service providers can exclude trans women on a case-by-case basis.

Such misinformation incites resentment against trans women, and in the worst cases violence.