Women beware women

The Equality Act 2010 (the vast majority of which is now in force) aims to tackle discrimination and inequality. It consolidated nine separate pieces of legislation, and introduced new and improved rights. The legal framework for dealing with discrimination should therefore be simpler and more effective now than ever before. If an arts organisation chooses to cater exclusively for one sex, it may face a challenge based on these new rules that the exclusion of the other sex is unlawful discrimination.

• It remains unlawful to discriminate against workers because of their gender. Employers must not discriminate because of sex, marriage, civil partnership, pregnancy, maternity or because an employee intends to undergo (or has undergone) a gender reassignment.

• In some limited situations, the Act allows an employer to require that a worker is of a stipulated sex. This is known as an “occupational requirement”, and allows, for example, a theatre to employ a female actor to play a female role or a female dresser for a female member of cast.

• The Act allows groups, organisations and private members clubs to offer membership to women-only, since these types of organisations are seen to be beneficial to society. Taking account of that restriction, larger associations (those with over 25 members) must still ensure that they do not discriminate within their membership, or those females who wish to apply (so for example, a women’s welfare association could not reject a request for membership on the basis of the applicant’s assumed sexuality). A peer support group for female arts managers, for example, would be allowed, but discriminating against applicants for membership to that support group on the basis of their (assumed) sexuality would be unlawful.

• The Act also covers the goods, services and facilities provided by groups, organisations, and private members clubs, regardless of whether the activity is provided for free or in return for a payment. Normally, an association or commercial body cannot discriminate by only providing goods, services or facilities to one gender. However if an association restricts membership to one gender, then it may also choose to restrict access to benefits or services to associates who are of the same gender. This means a club for female painters could restrict attendance to its live model classes.

• An organisation can also choose to provide goods, services and facilities to women-only if it can show that providing a service for men and women would not be as effective, and it would not be reasonably practicable to provide the service in any other way. In choosing to provide women-only services, the association would need to be able to objectively justify its decision and show that only women require their service; or that there is provision for both sexes, but that does not satisfy the demand; or a women may object to the presence of a man or physical contact may be involved and a person might object if the other person was of the opposite sex. For example, a writer’s group may be able to demonstrate that holding a women only event would enable a group of beneficiaries to engage in the project, who would otherwise be unwilling to take part. Similarly, a dance company that only has access to limited changing facilities may be able to demonstrate that dancers could object if men were present.