Sex and gender after For Women Scotland – what do charities need to know?

For many charities, this has become one of the most challenging legal areas to navigate in recent years. Keep an eye on for the Civil Society article coming soon. For now, we thought we’d loosen the tie slightly and share some of what we’re actually seeing in practice: the questions charities are asking us and the issues causing the most head-scratching.

There has been no shortage of commentary on For Women Scotland and the updated Code. But the conversations we are having with charities are less about the judgment itself and much more about one question: “OK, but what do we actually need to do?”

A fair question and (slightly unhelpfully, we’ll admit) the answer is: it depends.

For some charities, the starting point will be to look at the way they advertise and deliver their services to particular groups. For others, it will be about reviewing the wording tucked away in their governing document, membership terms, or trustee eligibility requirements. Sometimes the issue only emerges when someone asks a deceptively simple question about what the charity does and who it does it for.

The clearest lesson that we have learned from the advice we have been giving on this topic is that the question: “what do we need to do?” is very difficult to answer in the abstract. It’s all about how the law and the EHRC’s statutory guidance intersects with each organisation, and the answer can look quite different from charity to charity.

This is usually one of the first questions. There is an understandable temptation after a significant legal judgment and widespread media coverage to assume that doing something must be better than doing nothing. Cue the frantic policy reviews, website edits and reaching for the constitutional red pen. Our advice? Red pen down, at least for a moment.

We have been helping charities to take a step back and work out where the law in this area actually impacts their organisation. Depending on the charity, that can take us into governing documents, contracts for commissioned services, membership criteria, grant funding conditions, policies and public-facing information.

Sometimes this exercise identifies something that needs to change. Sometimes it confirms that an existing approach can continue. Sometimes it identifies something nobody had previously thought about. Either way, it is important to do the thinking: not needing to change anything is not the same as not needing to do anything.

The Charity Commission is in the process of updating its Equality Act guidance and has said it will be published this autumn, but the Commission has made clear that charities should not wait for the updated guidance before taking steps to comply with the Equality Act and the updated EHRC Code, and has warned that unreasonable delay could amount to a breach of trustees’ responsibilities.

So, even if the conclusion at the end of the exercise is “we’re comfortable with things as they are”, working through the legal updates, considering the implications and recording the charity’s decision and reasoning behind that decision will in itself be an important governance exercise.

This is where things get trickier. The Equality Act contains several different provisions that may be relevant to certain charities, including provisions for associations, exceptions for single-sex and separate-sex services, the ability to take positive action and a specific exception for charities that restrict their objects to a certain group or groups. Each of these provisions do different jobs and they each come with different legal conditions and tests.

So, for example, if a charity asks us whether they can continue to deliver a “women’s service” for women and trans women, the answer is rarely a simple yes or no. Some careful thought may well be needed.

Finally, an easy one: no. One of the most interesting things about the work we’ve been doing with charities in this area is that a conversation that starts with “who can use this service?” can take us to some rather unexpected places.

Pull one thread and, sometimes, quite a bit starts to unravel, which is why we recommend approaching this as a charity-wide governance exercise, rather than treating it as a narrow question about service provision.

Our advice to any charity looking at this topic is: don’t look for a one-size-fits-all answer. Start by asking how this affects your charity and the work you do and go from there.

Our charity and not-for-profit team can help, whether that’s an initial sense-check or a more detailed review of governing documents, services, membership arrangements, policies and trustee decision-making.