I came across an interesting scenario on Twitter recently. @JocastaMoney was looking for women only activities at her local council operated leisure centre and found three: Thermal Spa for Women, Yoga and Swimming for Women and Girls.
It will come as no surprise to anyone, I’m sure, that the leisure centre operates a policy that allows men to take part in these “women only” sessions if they “identify as females”.
Obviously, there are questions around what it means to identify as a female. Or how anyone could know the difference between a man who really identifies as a female and a man who just says that he identifies as a female. We’ve been going round and round these articles of faith for some years now and aren’t likely to come to an objective landing any time soon.
More interestingly, though, this policy looks straight up discriminatory and unlawful.
Here’s why.
The Equality Act 2010 specifies nine Protected Characteristics, and it is unlawful to discriminate against someone on the basis of one these. However, it includes provision for positive action – for instance if people sharing a Protected Characteristic are underrepresented or need help to achieve equality.
The council will likely have elected to run single-sex sessions for females only as a positive action. To justify this, they will need to demonstrate that the demographic (of female people) has fewer opportunities to take part in sport and fitness activities or there is some other discouragement that prevents them taking part in mixed sex sessions, or they have greater need of such activities.
The relevant Protected Characteristic in this case is Sex.
Males “who identify as female” have the Protected Characteristic of Gender Reassignment. If these males are then allowed to access these sessions, the only demographic who are excluded are males who do not have the Protected Characteristic of Gender Reassignment, and they have been excluded as a direct consequence of the Protected Characteristic.
This is direct discrimination and unlawful.
Importantly, women and girls “who identify as male” would not be excluded because they are female (though they might choose to self-exclude).
The council could choose to make another positive action around fitness and leisure if they could demonstrate that people with the Protected Characteristic of Gender Reassignment have need of it. But that is not true in this case, and neither are the session advertised as such.
It’s relevant, too, that the leisure centre in question is council run, because councils have a Public Sector Equality Duty (PSED) that goes beyond the requirement to not discriminate.
When delivering services, councils and other public bodies are required to:
eliminate discrimination
advance equality of opportunity
foster good relations between different people when carrying out their activities
Presumably, the leisure centre has made these female only sessions available under its PSED remit to encourage women and girls to take part in sport and fitness activities.
Having identified the need for female only sessions, the council is duty bound to provide them or risk accusations of discrimination on the basis of sex if men and boys have been given more opportunities. By allowing men and boys to identify into these additional “female only” sessions, the council is now also in breach of the PSED because it has identified a need but chosen to NOT address it, and instead funded additional mixed sex provision.
So, if you see this happening at a council facility in your area, let your local council know that:
excluding only those males who do not have the Protected Characteristic of Gender Reassignment is discriminatory and unlawful under the Equality Act 2010
but they can’t just withdraw the provision because the PSED obliges them to take reasonable steps to provide female only provision if they are aware of the need