June 28, 2016
Cross-posted from: Louise Whitfield
Originally published: 16.06.16
HOW LEGISLATION PROTECTS WOMEN-ONLY SPACES AND SERVICES:
by Louise Whitfield, Public Law Specialist and Partner at Deighton Pierce Glynn
This briefing is designed to highlight the existence of legal protections for women-only activities, spaces and services to help ensure that these rights are properly understood and to avoid misinterpretation that may threaten their existence. The following topics are dealt with below:
Summary of what is and isn’t covered by the Equality Act 2010
When discrimination is lawful
When discrimination against women-only events is unlawful
The legal responsibilities of public bodies
This briefing does not detail all the protections available under the Equality Act 2010 for all groups in all areas – or set out the principles which underpin the Act – except where it is relevant to the rights of women. It is designed to be understood by non-lawyers. Further information is also provided in appendices in terms of the specific provisions of the Act and other resources.
WHAT IS AND ISN’T COVERED BY THE EQUALITY ACT 2010
The Equality Act 2010 is the main piece of law in England, Wales and Scotland to protect particular groups from disadvantage or unfair treatment*. It bans discrimination against certain groups in certain activities. Discrimination essentially means treating people less favourably because of a “protected characteristic”. A protected characteristic means someone is entitled to legal protection on the grounds of a particular feature, for example their sex.
The list of protected characteristics is set out in section 4 of the Equality Act and can be found in appendix 1 of this briefing, along with definitions of the main types of discrimination that are relevant: direct, indirect and harassment.
Biological sex and gender re-assignment are two of the relevant ‘protected characteristics’ as they relate to women-only spaces and services.
The specific areas or activities covered by the different parts of the Act that are relevant are:
services and public functions
Anti-discrimination laws do not cover anything else you do or plan to do. Private activities are NOT covered by these anti-discrimination laws.
*1. The Equality Act 2010 does not apply in Northern Ireland which has a range of different pieces of legislation prohibiting discrimination.
WHEN DISCRIMINATION IS LAWFUL
Generally, the Equality Act doesn’t allow for discrimination against those with ‘protected characteristics’ who want to use a service. However, there are exceptions in certain circumstances.
If you are providing a service, you can provide it for women only under paragraph 27 of Schedule 3 of the Act (which is set out in Appendix 2). This states that if the targeted provision is a proportionate means of achieving a legitimate aim and the services meet ONE of six conditions (for example only people of that sex need the service), it is lawful to provide it to women only. You can find all the conditions in Appendix 2.
In addition, paragraph 27 makes clear that, if a public body exercises a public function relating to the provision of a single-sex service, they are also covered by these exceptions. This covers “back-room” activities and decisions, about administration, management and finance. So a local authority funding a women-only refuge can do this lawfully; or they can let women’s groups use their buildings or facilities to provide women-only services.
The examples for lawful single-sex services given in the notes that were published with the Equality Act include the following:
• a cervical cancer screening service to be provided to women
only, as only women need the service;
• a domestic violence support unit to be set up by a local
authority for women only but there is no men-only unit
because of insufficient demand;
• separate male and female wards to be provided in a hospital;
• separate male and female changing rooms to be provided in
a department store;
• a massage service to be provided to women only by a female
massage therapist with her own business operating in her
clients’ homes because she would feel uncomfortable
massaging men in that environment.
Women’s projects or organisations may find guidance from the Equality & Human Rights Commission useful. This is because they explain how it is lawful to provide single-sex services; (see the link in Appendix 4 to “What equality law means for your business”, specifically pages 16 and 17).
Paragraph 28 of Schedule 3 of the Act also makes it lawful to refuse to provide single-sex services to someone on the basis of their gender reassignment. Again
this needs to be objectively justified – the provision of single-sex services must be a proportionate means of achieving a legitimate aim. The example given in the explanatory notes that accompany the Equality Act is as follows:
“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.”
This issue is also covered in the EHRC’s guidance at page 17 which is relevant to women’s projects or organisations providing single-sex services: “Although a business can exclude a transsexual person or provide them with a different service, this is only if it can objectively justify doing so”. “Objective justification” means that you have a legitimate aim (a good reason) for providing a particular service, and that making it women only is a proportionate (reasonable – not ‘over the top’) way of meeting that aim. For example, a domestic violence organisation might have a legitimate aim of ensuring women feel safe because otherwise they will not want to access the services, and it would be proportionate to restrict your service to females to ensure that it is effective.
It’s amusing to watch liberal feminists and sex industry advocates tie themselves into semantic knots, because they want to, at the same time, condemn ‘incel’ rhetoric, while still supporting the sex industry. Meghan Murphy at Feminist Current has, of course, got there first with a first class radical feminist analysis:
This week, the liberal feminist internet exploded into bewildered anger over a column by Ross Douthat in The New York Times, which pointed out the obvious: that in a world that has placed an incredible amount of value on sex, that has glorified capitalism and turned almost everything into a sellable product, and that has told people (men, in particular) that sex is an inalienable right, inevitably we will arrive in a world that commodifies sex, and seeks to find a way to offer sex to anyone that wants it. I’m stretching his argument to add my own analysis, of course, but essentially this is the point he made: this is the world we live in — the world we created.
Liberal feminism let out an immediate and unified shriek at having to contend with the fact that their purported hatred for incels (which describes a group of men who are “involuntarily celibate”) and other men who communicate their anger at having not been offered the thing porn culture told them they were entitled to (sex with hot, young, porny women) did not mesh with their efforts to normalize and legalize men’s access to women’s bodies in the sex trade.
Jaclyn Friedman, author of Unscrewed: Women, Sex, Power and How to Stop Letting the System Screw Us All and co-editor (with Jessica Valenti) of Yes Means Yes: Visions of Sexual Power and a World Without Rape, tweeted: “CAN PEOPLE JUST STOP FUCKING SAYING THE PHRASE ‘REDISTRIBUTION OF SEX’ LIKE IT IS AN ACTUAL THING. Sex is not a commodity. Women are not a commodity. Sex workers are not a commodity. Sex is an ACTIVITY. You can’t ‘redistribute’ sex any more than you can ‘redistribute’ dancing.”
Despite Friedman’s usually effective use of Caps Lock, her argument doesn’t follow. Particularly because she is one of those who advocates to legalize and normalize the purchase of sex, meaning that indeed she believes men should have the right to access women’s bodies and should have the right to sex, anytime they wish, so long as they can pay and so long as a woman needs the money.
The sex industry literally commodifies sex and women. This is what a commodity is: a service or product that can be exchanged, bought, or sold on the market. Even if you choose to believe sex is a “service” just like physiotherapy or a manicure, if you are paying, it is a commodity. If you are going to argue that sex is not a commodity and to present it as such is Not A Good Thing, you are going to have to admit that radical feminists have been right all along, and that turning women and sex into things to be bought and sold is indeed a dangerous thing.
Similarly, Laurie Penny, who also advocates for the legalization of pimps, johns, and brothels, insisted that “Sexual redistribution’ isn’t a thing. The reason for this is that sex is not a commodity but a relation between human beings,” adding, “(Which is also, sometimes, a service performed for money.)”
While Douthat’s column may well have been convoluted, and while he was unclear about what his own perspective is on what is sadly an inevitable reality (he later clarified on Twitter that he feels this approach is “bad”), those who responded angrily at the notion of a “redistribution of sex” laid bare their own hypocrisy, which is arguably worse than writing an unnecessarily complex column with too long sentences (I am guilty of this today, as well, and am sorry) and coming off as a bit pompous as a result. If you read the piece about four times over, you’ll start to get the gist.
Douthat doesn’t advocate for a dehumanized and commodified “redistribution of sex,” he just says this is what liberals like Penny and Friedman have fought for and won. Douthat writes:
“… As offensive or utopian the redistribution of sex might sound, the idea is entirely responsive to the logic of late-modern sexual life, and its pursuit would be entirely characteristic of a recurring pattern in liberal societies”
He also rightly points out that our understanding of sex and sexual liberation has been very much shaped by Hugh Hefner — meaning that we have adopted a social value that says men should have access to a wide variety of young, sexualized, one-dimensional women who are always “up for it.”
I suspect part of the problem, beyond their inability to think their way out of a paper bag, is that Douthat called out the zealous efforts of these liberals and leftists to “transform prostitution into legalized and regulated ‘sex work,’” thereby encouraging nouveau-porn technologies like sex robots and the broader notion that men have a right to sex. And beyond that, they did so without “formally debating the idea of a right to sex” or, I’d argue, listening to the masses of feminists who have, over decades, been pointing out that if you want actual sexual liberation for women, you can’t achieve it while simultaneously commodifying sex and saying that it’s acceptable for some women to be treated as sex objects, so long as they are compensated.
Friedman told Vice that “she finds it ‘profoundly appalling’ that The New York Times’ opinion pages would legitimize incel culture under the guise of a debate,” making it clear that she (whether intentionally or unintentionally) missed the point entirely. In fact, it is Friedman and her gaggle of desperate-to-be-cool liberal cronies who focused their careers on trying to legitimize exactly the mindset incels have internalized, and who then lashed out in anger (too-often violently) at the discovery that their fantasy was just that.
I wonder what they thought the end result of fighting for a porn industry and sex trade would be? That men would think, “Gosh, the best way to build relationships with women is through respect and by getting to know them as the humans they clearly are”? Or, rather, would they come to the conclusion that women’s bodies are things that exist to be fucked, and that at any given moment, they should be able to get off, in whatever way they like, regardless of how the woman on the other side of their laptop screen feels about it?
“I expect the logic of commerce and technology will be consciously harnessed, as already in pornography, to address the unhappiness of incels, be they angry and dangerous or simply depressed and despairing.”
When you argue that a sex trade must exist in order to serve the “lonely,” “anti-social,” or “sexually unfulfilled,” you shouldn’t be surprised when that world appears in front of you. And certainly you shouldn’t be surprised when men accept your arguments and run with them.