The Equality Act 2010 and support services for rape survivors: Does the UK comply with its international human rights obligations?
In 2022 the UK assumed international treaty obligations on violence against women that require, amongst others, providing rape crisis services to female survivors of sexual violence. The government maintains it complies with this duty.
But does it comply, or does the UK rather breach its international obligations, if national equality legislation de facto permits providers of such services to apply gender self-identification in relation to staff and users of such services and, vice versa, if the complexity and ambiguity of UK equality law renders unclear the true extent of legally permissible separate- or single-sex provision?
According to the analysis presented here, the Istanbul Convention requires the provision of single- and separate-sex rape crisis services for survivors of violence against women and girls (VAWG). Yet with reference to the Equality Act 2010, as interpreted and applied in light of subsequent legislation, such services have in various cases been withdrawn, while a perception has increasingly prevailed amongst relevant actors that this is mandated or at any rate permitted by statutory requirements.
The UK Supreme Court will shortly hear argument in For Women Scotland Ltd vs the Scottish Ministers. Whatever the Court decides, regarding the correct statutory construction of the Equality Act 2010, and its use of the term ‘woman’, as a matter of domestic law, it remains important to consider whether, as matters stand, and by virtue of the Equality Act 2010, the UK can be assessed as truly compliant with its Istanbul Convention obligations in this area, for a number of reasons. Inter alia these include that:
1) The Supreme Court can rely on international legal rules in holding state action unlawful (see, for example, R (on the application of AAA and others) (Respondents/Cross Appellants) v Secretary of State for the Home Department (Appellant/Cross Respondent) paras.19-26, 149)
2) The consequential breach of duties under the Istanbul Convention would be material in assessing any claimed engagement of or interference with the ECHR Article 8 rights of biological males, or more generally their rights under international human rights law, arising from single- or separate-sex provision of VAWG survivor services by virtue of the Equality Act 2010 or other instruments
3) The Council of Europe is currently evaluating the compliance of the UK with its Istanbul Convention obligations, and access to services for VAWG survivors has been raised by various submissions in this context.[i]
Section 1 of this note considers the duty of state parties under the Istanbul Convention to provide services to VAWG survivors; substantive criteria such services must meet including accessibility, and gender-sensitivity; and explains why such services must, under the Convention, be provided on a single-sex basis.
Section 2 considers UK compliance with these duties. Section 2.1 briefly outlines the basis on which the UK government has asserted its compliance. As Section 2.2 demonstrates, however, single- and/or separate-sex VAWG survivor services meeting Istanbul Convention requirements are not effectively guaranteed in the UK, despite the purported intent of the Equality Act 2010 and associated guidance to safeguard provision in that context.
Section 3 identifies a number of additional reasons that support the view that mixed-sex provision of VAWG survivor services is precluded by the Istanbul Convention, with reference to Council of Europe and United Nations human rights instruments.
Section 4 concludes.
1. Access to services for victim-survivors of violence against women: international obligations
The Council of Europe’s Convention on preventing and combating violence against women and domestic violence (‘Istanbul Convention’) articulates a ‘comprehensive framework’ of ‘policies and measures for the protection of and assistance to all victims of violence against women and domestic violence’ (Article 1(c)).
It was signed by the UK in 2011 and ratified in 2022 with the support of devolved administrations in Scotland, Wales and Northern Ireland. The UK government maintains that the country as a whole complies with its obligations under it.[ii]
The Istanbul Convention aims to establish integrated national approaches to tackle violence against women and girls (VAWG). Accordingly, it defines broad-ranging state duties spanning matters such as research and data collection, violence prevention and education, protection and support for victims, and investigation and prosecution of criminal offences relating to VAWG.
Articles 18 to 28 of the Istanbul Convention define states’ duties concerning victim protection and support. These require the provision of ‘general’ and ‘specialised’ support services; shelters and helplines; access to complaints mechanisms and information for victims; and child protection measures, amongst others.
Regarding victim support services, the Istanbul Convention defines state duties in three categories.
Under ‘General support services’ (Article 20), the Convention provides that states must,
‘…take the necessary legislative or other measures to ensure that victims have access to services facilitating their recovery from violence. These measures should include, when necessary, services such as legal and psychological counselling, financial assistance, housing, education, training and assistance in finding employment…’
Second, in terms of ‘Specialised support services’ (Article 22), states must,
‘…take the necessary legislative or other measures to provide or arrange for, in an adequate geographical distribution, immediate, short- and long-term specialist support services to any victim subjected to any of the acts of violence covered by the scope of this Convention’ (Article 22(1)).
and
‘…provide or arrange for specialist women’s support services to all women victims of violence and their children’ (Art 22(2)).
Third, states are obliged to provide ‘Support for victims of sexual violence’. Article 25 of the Istanbul Convention requires that states parties, in particular,
‘…take the necessary legislative or other measures to provide for the setting up of appropriate, easily accessible rape crisis or sexual violence referral centres for victims in sufficient numbers to provide for medical and forensic examination, trauma support and counselling for victims.’
As elaborated by the Istanbul Convention’s accompanying official Explanatory Report, Article 22 ‘…and the following provisions require Parties to the Convention to set up or arrange for a well-resourced specialist support sector.’ ‘The aim of such specialised support’, it clarifies,
‘…is to ensure the complex task of empowering victims through optimal support and assistance catered to their specific needs. Much of this is best ensured by women’s organisations and by support services provided, for example, by local authorities with specialised and experienced staff with in-depth knowledge of gender-based violence. It is important to ensure these services are sufficiently spread throughout the country and accessible for all victims. Moreover, these services and their staff need to be able to address the different types of violence covered by the scope of this Convention and provide support to all groups of victims, including hard-to-reach groups. The types of support that such dedicated services need to offer include providing shelter and safe accommodation, immediate medical support, the collection of forensic medical evidence in cases of rape and sexual assault, short and long-term psychological counselling, trauma care, legal counselling, advocacy and outreach services, telephone helplines to direct victims to the right type of service and specific services for children as victims or witnesses’.
The Explanatory Report further highlights that, by contrast with the ‘general support services’ referred to by Article 20, ‘specialist support services under Article 22’, address ‘the – often immediate – needs of victims of specific forms of violence against women or domestic violence and are not open to the general public. While these may be services run or funded by government authorities, the large majority of specialist services are offered by NGOs [non-governmental organisations].’
The Explanatory Report also underscores the duty of states under Article 25 of the Istanbul Convention to provide support services for women victims of sexual violence:
‘The traumatic nature of sexual violence, including rape requires a particularly sensitive response by trained and specialised staff. Victims of this type of violence need immediate medical care and trauma support combined with immediate forensic examinations to collect the evidence needed for prosecution. Furthermore, there is often a great need for psychological counselling and therapy…’ (para. 138).
Consequently,
‘Article 25…lays particular emphasis on providing this type of specialised support by obliging Parties to provide for the setting-up of accessible rape crisis or sexual violence referral centres’(para. 139).
‘Rape crisis’ and ‘sexual violence referral’ services are thus separately identified under Article 25.
‘[R]ape crisis centres’, according to the Explanatory Report,
‘Typically…offer long term help that centres on counselling and therapy by offering face-to-face counselling, support groups and contact with other services. They also support victims during court proceedings by providing woman-to-woman advocacy and other practical help’.
By contrast, sexual violence referral centres ‘…may specialise in immediate medical care, high-quality forensic practice and crisis intervention’, (para. 141), and work closely with services providing longer term care by ‘referring the victim to specialised community-based organisations for further services…’ or ‘…immediate and adequate referral of the victim to appropriate, specialised organisations as to provide the necessary care as determined by Article 25…’
Saliently, in this context, according to the Explanatory Report, ‘The [use of the] term “appropriate” intends to ensure that the services offered are suitable for the needs of victims’ (para. 142, emphasis added).
The Council of Europe has established an expert body to monitor state parties’ compliance with the Istanbul Convention (GREVIO).
Based on its monitoring work across Europe, in a report published last year, this body provided additional commentary on ‘The role and importance of rape crisis and sexual violence referral centres’.
‘It is of paramount importance’, GREVIO’s report highlights, that legislative reforms on VAWG,
‘…go hand in hand with the setting up and/or strengthening of specialised services for victims of sexual violence. Such support services are of essence to ensure victims’ recovery and to address the consequences stemming from the violence, including self-blame and a sense of shame. They are also essential to facilitate access to justice as they empower victims and provide the needed forensic evidence to enable effective prosecutorial action and an eventual conviction (p.50).
Further, GREVIO observed that,
‘…victims of sexual violence can suffer multiple and enduring consequences, including possible physical consequences such as injury, sexually transmitted infections, unwanted pregnancies and unsafe abortions, as well as a wide range of psychological consequences, such as anxiety, depression and suicidal thoughts’ (p.50).
Consequently,
‘Studies have shown that that post-traumatic stress disorder (PTSD) is highly prevalent among victims of sexual violence, with one study finding 94% of rape victims met the PTSD criteria approximately two weeks post-rape, and 47% continued to meet the criteria after three months (p.120).
Such ‘psychological consequences also raise the chances of future drug addiction as well as re-victimisation’ (p.50-51). ‘In addition,’ GREVIO noted,
‘…research has highlighted that a rape victim’s first encounter with the support system can have very negative long-term consequences in terms of recovery, if the support is not adequate’ (p.51).
Where victims have poor experiences with services intended to help them, therefore, this ‘…can cause further harm to them, unless certain protection measures are taken and psychological counselling and trauma support is provided in parallel’ (p.50).
As a result, relevant processes and institutions should, ‘…giv[e] victims the control over the decisions taken’. In addition, ‘Victims must be granted services regardless of their willingness to report or testify against the perpetrator’ (p.51).
An unequivocal rationale for GREVIO’s emphasis in this context on centring women victims within prevention, legislative, judicial and policy responses to VAWG, and survivor services is provided by Article 7 of the Convention itself. Under Article 7(2),
‘Parties shall ensure that [legislation and policies addressing VAWG] place the rights of the victim at the centre of all measures and are implemented by way of effective co-operation among all relevant agencies, institutions and organisations.’
Notably, no reservations were entered by the UK to Article 7 or the other provisions referred to above when ratifying the Istanbul Convention in 2022.
At global level, the UN Women’s Committee has expounded on state duties regarding referral services for victim-survivors under the UN Convention on the Elimination of All Forms of Discrimination against Women in similar terms.
The Committee’s General Recommendation No. 35, for instance, highlights that,
‘All measures should be implemented with an approach centred around the victim/survivor, acknowledging women as right holders and promoting their agency and autonomy,’ (para.28)
Likewise, the Recommendation notes states’ parties’ obligation to,
‘Ensure that all legal proceedings, protective and support measures and services concerning victims/survivors respect and strengthen their autonomy’ (para. 31(a)(v)).
2. Assessing UK compliance with Istanbul Convention requirements concerning services for VAWG survivors
2.1 The basis for compliance as asserted by the UK government
In preparing to ratify the Istanbul Convention, the UK government developed a series of five annual national progress reports. According to the last of these, in 2021 the UK was fully compliant with the treaty’s various requirements relating to survivor services, including under Articles 20, 22 and 25.
Given that, for purposes of devolution under the Scotland Act 1998, the area is one of mixed competence, in reaching this assessment arrangements for provision in England, Wales, Northern Ireland and Scotland were documented.
Concerning England and Wales, for example, it was reported,
And as regards Scotland,
2.2 Non-compliance deriving from the Equality Act 2010, associated materials and consequent failure to provide adequate single-sex VAWG survivor services
The UK’s claimed compliance with the Istanbul Convention, based on the provision arrangements centrally and across devolved regions as just described, however hinges on whether the services as delivered meet the standards identified above, including those of ‘accessibility, ‘appropriateness’ and ‘suitability for the needs’ of all victims of VAWG.
Certainly, such services should also avoid the exposure of victim-survivors who use such services to secondary victimisation or re-traumatisation, as alluded to by the European Court of Human Rights with reference inter alia to Articles 3 and 8 of the ECHR, as discussed here.
Gradually, however, it has emerged that some, and perhaps a majority of rape crisis services across the UK have operated gender self-identification policies in relation to service users and staff. In Scotland, for instance, it was suggested in 2022 that all rape crisis services nationally were open to biological males.
There is moreover evidence that this approach has impacted on the content, manner of delivery and effective accessibility of their services to victims of VAWG in ways that appear to obstruct the UK’s full compliance with Istanbul Convention requirements.
Amongst others, this has been highlighted in the course of the Employment Tribunal’s judgment in Adams v Edinburgh Rape Crisis Centre (ERCC).
In Adams, according to the Tribunal’s decision, the respondent rape crisis centre had refused to provide rape crisis services to female victims seeking referral to counsellors of their own biological sex. It had further refused to refer victims to other rape crisis centres where such services might be obtained.
Subsequently, an organisational review found that ERCC documents and the ERCC website did not advertise ‘dedicated spaces/times for women and girls’ or ‘women-only services’.
This, according to the organisational review, ‘[Put] women in the position of having to discuss whether the service they receive [would] be provided by someone who was born and continues to identify as female’. In turn, the review found, this
‘…caused damage [to victims] and does not amount to the provision of protected ‘women only’ spaces.’
Overall, according to the review,
‘…requiring women to specify that they want a service delivered by a biological woman/female amounts to a ‘core failure’ assessed against applicable standards for rape crisis centres.’
Similar cases have arisen elsewhere in the UK. Some providers of rape crisis services have adopted policies in this area that combine statements of ‘in principle’ support for single-sex rape counselling services with the devolution of decision-making to the level of individual centres on ‘whether to deliver some or all as single-sex services’.
Other providers appear more committed to gender-neutral or ‘trans-inclusive’ approaches. In Scotland, for instance, Rape Crisis Scotland, indicates its services ‘are normally open to people of all genders unless explicitly mentioned’.
Such cases occur against a wider background of increasing difficulties for providers of single- and separate-sex services, beyond the area of VAWG, in navigating their statutory duties under the framework of national equality law.
The Equality Act 2010 establishes general duties not to discriminate on grounds of protected characteristics, including sex. While it permits, in derogation from these general duties, the provision of separate-sex and single-sex services in some circumstances, establishing their legality is not straightforward, including as regards services provided to survivors of VAWG.
Indeed, as early as 2014, evidence was put by women’s organisations before the UK Parliament’s Joint Committee on Human Rights (JCHR), during its inquiry on violence against women and girls, that government commissioning processes were, in the wake of the Equality Act 2010, demanding that service providers offer ‘gender-neutral’ domestic abuse counselling and referral services.
Local authorities, their evidence suggested, were misinterpreting the Equality Act 2010 and lacked ‘clear direction on their obligations to address violence against women and girls.’ The government at the time rejected this evidence.
Nevertheless, in its report, the JCHR recommended that,
‘…the Government issue guidance to all local authorities on the correct application of the law on equality to the services required under the Istanbul Convention.’
Whereas this was not done, subsequently, uncertainties over the interpretation of exceptions, relating to separate sex and single sex services, to the Equality Act’s general non-discrimination duties, continued to manifest across a widening policy domain.
Ultimately, this led to the publication, in 2022, by the UK Equality and Human Rights Commission [EHRC] of a new ‘practical guide’, entitled Separate and single-sex service providers: a guide on the Equality Act sex and gender reassignment provisions. While not in itself legally authoritative regarding the construction to be put on the Equality Act 2010, nonetheless the Guide is significant, given its practical influence on the way the Act is understood and applied by duty-bearers in practice. According to the EHRC’s 2022 Guide,
‘To establish a separate or single-sex service, you must show that you meet at least one of a number of statutory conditions…and that limiting the service on the basis of sex is a proportionate means of achieving a legitimate aim. For example, a legitimate aim could be for reasons of privacy, decency, to prevent trauma or to ensure health and safety. You must then be able to show that your action is a proportionate way of achieving that aim.’
En passant, the EHRC Guide suggests that single-sex rape crisis services may on this basis be permitted under the Equality Act 2010. Giving an example of a lawful exception to general equality duties arising under the statute, the Guide highlights that,
‘…a women-only support unit for women who have experienced domestic or sexual violence can be set up, even if there is no parallel men-only unit because of insufficient demand’.
However, the law’s requirements, according to the EHRC Guide, are still more complicated when it comes to demonstrating the legality of the exclusion of transgender individuals (with or without gender recognition certificates) from separate sex or single-sex services, where these are provided.
Here, according to the 2022 EHRC Guide,
‘There are circumstances where a lawfully-established separate or single-sex service provider can prevent, limit or modify trans people’s access to the service….However, limiting or modifying access to, or excluding a trans person from, the separate or single-sex service of the gender in which they present might be unlawful if you cannot show such action is a proportionate means of achieving a legitimate aim. This applies whether the person has a Gender Recognition Certificate or not.
When considering how your service is provided to trans people, you must balance the impact on all service users and show that there is a sufficiently good reason for excluding trans people or limiting or modifying their access to the service. Some service providers may find it helpful to have a policy for how services are provided to trans people. Where this is the case we recommend you develop a policy but this is not a legal requirement. If you do have a policy you should be prepared to consider whether particular circumstances justify departing from the policy.’
In addition, the EHRC Guide informs service providers that they,
‘…must be able to demonstrate that providing a separate or single-sex service is a proportionate means of achieving a legitimate aim. It is therefore good practice to record the reasons why you have taken the decision to provide a separate or single-sex service, along with any supporting evidence. For example, you have chosen to provide a single-sex hospital ward because patients have told you they have legitimate concerns about staying on a mixed ward, e.g. privacy. If this is the reason for your decision, it would be good practice to support this with evidence, such as a patient survey.’
The procedural requirements on service providers, under the Guide, are thus technically complex and administratively onerous, extending to commissioning service-user surveys and obtaining legal advice, for example, as well as re-evaluating the legality of arrangements on a case-by-case basis. In effect, this last point in particular entails that no single-sex service can be guaranteed as such to prospective users, according to the Guide.
Moreover, the 2022 EHRC Guide does not explicitly refer to, or implicitly reflect, the clear and binding obligations to provide ‘accessible’, ‘appropriate’, ‘sensitive’ and trauma-informed general and specialist services that are ‘suitable for the needs’ of all victims that arise under the Istanbul Convention.
Indeed, the EHRC Guide does not refer anywhere to the Istanbul Convention, the rights it establishes for victims of VAWG or corresponding duties on the state, public authorities and private service providers, nor flag the need for interpretation of the Equality Act 2010, its duties and exceptions, in line with the Istanbul Convention’s requirements.
Neither does the EHRC Guide consider the scope for the exposure of survivors of VAWG to re-traumatisation, repeat or secondary victimisation in this context,[iii] or associated breaches of relevant substantive articles of the European Convention on Human Rights, such as Articles 3, 8 or, following the Forstater case, Article 9, nor the rights to non-discrimination in relation to the enjoyment of Convention rights (Article 14) or the right to an effective remedy for breaches of protected rights (Article 13).
Given that the EHRC Guide encompasses services that the state is required to provide to women under the Istanbul Convention, these are significant oversights that would appear to undermine not just the completeness and consequently the authority of the EHRC Guide, but which also the credibility of the UK government’s claim that the duties under inter alia Article 25 of the Istanbul Convention to ‘…take the necessary legislative or other measures to provide for the setting up of appropriate, easily accessible rape crisis or sexual violence referral centres’ is met.
Of final note, while the Scottish Human Rights Commission acknowledged uncertainties concerning the scope and integrity of single-sex services for survivors of VAWG linked to the operation of gender identity-based policies (p.18) in its 2023 submission to the Council of Europe’s Istanbul Convention baseline assessment of the UK, the EHRC did not, referring only to its 2022 Guide (p.61).
3. Can the UK’s prima facie non-compliance with the Istanbul Convention be avoided?
To recap on the analysis presented here so far, firstly, the Istanbul Convention establishes binding international obligations for parties to it, including the UK, that extend to the provision, whether directly by the state itself or via NGO or other intermediaries, of rape crisis and other services for survivors of VAWG. The services provided in this context must meet certain qualitative requirements, which include accessibility, appropriateness, suitability to the needs of victims, gender-sensitivity and victim-centredness. They should not expose survivors to secondary-victimisation or re-traumatisation, nor should they breach survivors’ human rights, such as those under Articles 3, 8, 9, 13 or 14 of the ECHR.
Secondly, there is credible evidence to suggest, at minimum, that such standards have not been and are not universally met in the UK, as a result of the adoption and operation of ‘gender-neutral’, ‘mixed-sex’ and/or ‘trans-inclusive’ polices by rape crisis service providers; even on a conservative view, it would appear there are substantial gaps in provision of the requisite services.
Thirdly, it appears that the Equality Act 2010, which regulates the provision of single- and separate-sex services, engenders the breach, either as the material cause of the operation of such approaches by service providers, or because, to date, the Act as interpreted by its statutory regulators and other actors (and particularly though not exclusively in conjunction with the Gender Recognition Act 2004) has failed to provide a sufficiently clear basis for identifying or challenging mixed-sex delivery of VAWG services as illegal.
Accepting this argument, a further question to be considered is, then, whether the Equality Act as interpreted (and whether this interpretation is correct, mistaken, necessary or avoidable, as a question of domestic law) can be spared its apparent inconsistency with Istanbul Convention requirements by virtue of any other legal reason?
As considered next, this does not seem likely.
3.1 Does the Istanbul Convention really require separate and/or single-sex survivor services?
One route by which the Equality Act 2010, and the provision of mixed-sex survivor services, could be saved, for purposes of the Istanbul Convention, would be if the latter did not truly require separate- or single-sex provision of support services for survivors of VAWG but rather foresaw the fused provision of services for both sexes ‘from the get-go’.
While even for advocates of trans-inclusive policies in this area, this must be an unattractive interpretation, it is also one of little plausibility.
The Istanbul Convention is an instrument devoted to combating violence against ‘women’. That this means biological women is clear from its text, its accompanying Explanatory Report, its drafting history and as well as its interpretation by GREVIO, for reasons including the following. First, this meaning accords with the ordinary meaning of the word ‘woman’. Second, this interpretation is reinforced by specific elements of the Istanbul Convention, such as provisions, without qualification, addressing ‘Female Genital Mutilation’ (Article 38) and ‘forced abortion’ (Article 39); and standards relating to ‘pregnant women’, ‘unwanted pregnancies and unsafe abortions’. Regarding Article 39, the Explanatory Report clarifies that this relates to ‘women’s natural reproductive capacity’ (para.203) and that the criminal offence of ‘forced abortion’ relates to ‘forced abortion performed on a woman or girl’ (para.204). Of further support, thirdly, the use of the term ‘gender’, as highlighted by the Explanatory Report, ‘is not intended as a replacement for the terms “women” and “men” used in the Convention’ (para.43). Accordingly, ‘violence against women’ (Article 3 (a)) and ‘gender-based violence against women’ (Article 3 (d)), and ‘sexual violence’ as it appears in Article 25 are all restricted in their scope of reference to biological women.
Fourthly, while it is true that, as regards domestic violence, the Istanbul Convention’s definition, following a specific proposal made during the drafting process, extends to male and female victims (Article 3(b)), and that where it refers to children this includes biological boys and girls, these exceptions only serve to clarify that in general the Convention’s protection extends to women, understood as biological females.
Accordingly, Article 22(2)’s duty to provide ‘specialist women’s support services to all women victims of violence and their children’ refers to biological females and their children of either sex, and the duty arising under ‘Article 25 - Support for victims of sexual violence’ to,
‘…provide for the setting up of appropriate, easily accessible rape crisis or sexual violence referral centres for victims in sufficient numbers to provide for medical and forensic examination, trauma support and counselling for victims’,
likewise extends to female victims.
Interpreting ‘women’ in general, across the full text of the Convention, so as to include biological males, would thus deprive such key provisions, and the instrument as a whole, of any coherent function or meaning.
3.2 Does the Istanbul Convention permit services to be delivered on a generally mixed-sex basis to males and female victims of sexual and domestic violence?
It might be, nevertheless, that despite generally using ‘woman’ and ‘women’ to denote biological females, the Convention still permitted states parties to engage in mixed sex provision of survivor services, so long as the duties owed to biologically female survivors were at the same time met.
After all, states are not precluded by Article 25 from establishing survivor services relating to sexual violence suffered by biological males, and other human rights standards would certainly support this. Male victims of domestic violence are also encompassed by state duties arising under Article 3(b). Can survivor services for males, as victims of sexual violence or domestic violence, both those asserting transgender identities and others, be provided in conjunction with those provided to females, generally on a mixed sex basis?
Again, given the text, objectives, context, drafting history and expert interpretation of the Istanbul Convention, as well as practice and operational standards in the field, this conclusion is clearly insupportable in relation to male victims of sexual violence and domestic violence at large, and indeed antithetical to the whole notion of ‘gender-sensitive’, ‘victim-centred’, trauma-informed services for survivors of VAWG.
It is also specifically contradicted by the approach taken by GREVIO, for instance, (i) regarding Article 50’s requirements concerning law enforcement responses to VAWG; (ii) in the area of asylum; and (iii) concerning the adoption of ‘gender-neutral’ approaches by some states parties in relation to domestic violence, as considered next.
(i) Article 50 - Immediate response, prevention and protection
Under Article 50(1) of the Istanbul Convention states are obliged to,
‘…take the necessary legislative or other measures to ensure that the responsible law enforcement agencies respond to all forms of violence covered by the scope of this Convention promptly and appropriately by offering adequate and immediate protection to victims’.
In articulating the content of this duty, the Explanatory Report clarifies that this clause requires, inter alia the treatment of victims by law enforcement in an ‘appropriate manner’ and thus ‘hearing victims…by…where appropriate by female, staff’ and ‘…an adequate number of female law enforcement officers, including at high levels of responsibility’ (para.258).
(ii) Article 60 – Gender-based asylum claims
Under Article 60(3), states are required to ‘take the necessary legislative or other measures to develop gender-sensitive reception procedures and support services for asylum-seekers as well as gender guidelines and gender-sensitive asylum procedures’.
As elucidated by the Explanatory Report, ‘gender-sensitivity’ in this context requires
‘…inter alia : …the separate accommodation of single men and women; separate toilet facilities, or at a minimum, different timetables established and monitored for their use by males and females; rooms that can be locked by their occupants; adequate lighting throughout the reception centre; guard protection, including female guards, trained on the gender-specific needs of residents;…and provision of information to women and girls on gender-based violence and available assistance services’.
(iii) Gender-neutrality as inconsistent with ‘gender-sensitivity’
While the Istanbul Convention deliberately recommends gender-neutrality in the defining offences of sexual and domestic violence in criminal law, the adoption more broadly of ‘gender-neutral’ approaches in defining and delivering survivor services has been singled out for criticism by GREVIO as inconsistent with the duty on states, explicitly established by Article 6, to implement ‘gender-sensitive’ policies.
In some states parties, GREVIO observes,
‘…authorities use the concept of gender‑based violence rather than that of violence against women in an effort to be inclusive of men and boys, as well as LBTI women, fearing that a different approach would be discriminatory’ (para.19).
While ‘appreciat[ing] the willingness of the authorities to pursue a policy to combat gender‑based violence taking into account all victims without discrimination,’ GREVIO states,
‘…policies and measures need to separately target gender‑based violence against women ‑ violence against women risking otherwise to become invisible and inadequately addressed. GREVIO has also highlighted in this respect that such an approach fails to address the specific experiences of women, hindering their effective protection.’
This led to criticism by GREVIO, of Finland, for example, where ‘the entry into force of the convention’ had not led to adoption of,
‘…policies that consider the specific experiences of women experiencing violence, such as the setting up of women‑only support services’ (para.28)
Notably, in its 2017 General Recommendation on gender-based violence against women, updating general recommendation No.19 (1992), the UN Committee on the Elimination of Discrimination Against Women (CEDAW) also addressed gender-neutrality, recommending, as regards legislative measures to be taken by states parties, that ‘gender-neutral laws and policies’ must not 'create or perpetuate existing inequalities and be repealed or modified if they do so’ (para. 29 (d)).
Generally, according to GREVIO, gender-neutral policies and approaches, ‘[fail] to take into account that gender is a primary motive of gender‑based violence against women and, consequently, policies and measures that are gender neutral will not effectively respond to the specific experiences of women and girls.’
3.3 Does the Istanbul Convention permit survivor services to be delivered on a limited mixed basis i.e. fused services for biological males asserting transgender identities who are victims of sexual or domestic violence along with females?
Having excluded that the Istanbul Convention generally permits delivery of survivor services to female and male victims of domestic, sexual or other VAWG, on a mixed-sex basis, can it be supported, nevertheless, that it permits admission of biological males who assert transgender identities to otherwise single-sex services and facilities?
Here again the answer is negative. As seen above, ‘women’ and ‘women’ in the Convention, are terms used to refer to biological women, given their ordinary and natural meaning, and interpreted in their specific legislative context.
This entails that where the Convention’s non-discrimination clause (Article 4) makes reference to ‘gender identity’,[iv] this refers to gender identity (whether this is male, female or otherwise) as asserted by biologically female individuals.
Also notable, in this context, is that CEDAW, in its General recommendation No. 28 on the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, in defining groups of women who are ‘particularly vulnerable to discrimination through civil and penal laws, regulations and customary law and practices’ does not either refer to gender identity but only to ‘women deprived of their liberty, refugees, asylum seeking and migrant women, stateless women, lesbian women, disabled women, women victims of trafficking, widows and elderly women’.
Besides this, there is no other textual basis within the Convention, Explanatory Report, or in the Conventions expert interpretation to suggest that ‘woman’ includes males asserting transgender identities.
This view is further supported by the materials discussed just above, highlighting the need inter alia for female law enforcement staff, separate sex asylum facilities, and women-only services, even where legislation and policy and national level is formulated in general neutral terms.
Furthermore, Convention’s the discrimination clause is qualified so as to permit sex selection in women’s favour. Under Article 4(4) of the Convention,
‘Special measures that are necessary to prevent and protect women from gender-based violence shall not be considered discrimination under the terms of this Convention’.
Recalling that, under the Convention’s definition of ‘violence against women’ (Article 3(a)), violence includes acts or threats of acts likely to cause psychological harm, as well as the approach generally taken by GREVIO towards protective and support services for women, this would also appear to exclude room for the operation of ‘trans-inclusive’ VAWG survivor services - or indeed, for equality legislation that requires, is perceived to require, or even permits or is perceived to permit them. Services for VAWG survivors, the Explanatory Report and GREVIO’s expert analyses make clear, must be victim-centred and empowering, respect the autonomy and avoid re-traumatisation of survivors from the very start of the process, and cannot put them in a position where they are shamed because of a preference for same-sex treatment or forced to request ‘woman-to-woman’ counselling by services funded and intended to help them.
To recapitulate, in the Explanatory Report, it is clarified as a cross-cutting obligation of states parties that,
‘…all measures taken shall be based on a gendered understanding of violence against women and domestic violence. This means that services offered need to demonstrate an approach, relevant to their users, which recognises the gendered dynamics, impact and consequences of these forms of violence and which operates within a gender equality and human rights framework’ (para.115, concerning Article 18 General Obligations).
Further, it is highlighted that,
‘…measures and services that mean well but do not adequately take into consideration the devastating effects of violence and the length of the recovery process or that treat victims insensitively run the risk of re-victimising service users.’
4. Conclusion
In R (Elan-Cane) v. Home Secretary [2021] UKSC 56 [2023] AC 559, the Supreme Court considered a claim that regulations requiring UK passports would only be issued indicating the holder as being of male or female sex, and not with an ‘unspecified gender marker’. As the Court observed,
“52. … Some rights differ according to whether a person is a man or a woman: for example, rights of succession to hereditary titles. There are criminal offences that can only be committed against persons of a particular gender: for example, female genital mutilation. There is a raft of legislation which assumes that only a woman can give birth to, or be the mother of, a child, including legislation relating to maternity rights and benefits, health provision and fertility treatment, and nationality. …. Equality legislation protects people from discrimination if it arises from their being a man or a woman.
53. A binary approach to gender also forms the basis of the provision of a wide variety of public services. The prison estate, for example, is divided into male and female prisons. Hospitals have wards where patients can only be of a single sex. Local authorities may fund rape crisis centres or domestic abuse refuges which offer their services only to women. Many schools only admit pupils of a particular sex. Much of this is underpinned by, or permitted by, legislation.”
Unfortunately, as this note has shown, albeit the Court’s assumptions here may have seemed reasonable, not all were sound. In the UK today, the provision of single-sex services for survivors of VAWG, though required by the Istanbul Convention, is not effectively safeguarded.
Whether this situation owes to a correct and necessary, or flawed, interpretation of the Equality Act 2010, in interaction with other statutory protections, is a question on which the Supreme Court will duly pronounce.
While the parties’ arguments in the FWS case, as others have highlighted, focus on domestic law, the UK’s international duties are not without significance in this context.
As CEDAW’s General recommendation No. 28 on the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women recalls, under that instrument (under Article 2(c)),
‘…courts are bound to apply the principle of equality as embodied in the Convention and to interpret the law, to the maximum extent possible, in line with the obligations of States parties under the Convention. However, where it is not possible to do so, courts should draw any inconsistency between national law, including national religious and customary laws, and the State party’s obligations under the Convention to the attention of the appropriate authorities, since domestic laws may never be used as justification for failures by States parties to carry out their international obligations.’
As the Committee further observes, in its General Recommendation No.35,
‘An erosion of the legal and policy frameworks that aim to eliminate gender-based discrimination or violence, often justified in the name of tradition, culture, religion or fundamentalist ideology…further weaken States responses.’ In the context of shrinking democratic spaces and the consequent deterioration of the rule of law, all of those factors contribute to the pervasiveness of gender-based violence against women and lead to a culture of impunity’ [para.7].
On this basis, a Supreme Court decision that fails at minimum to notice the deficiencies of the UK’s current legal framework, when judged against applicable international legal standards, and the grave impacts they entail for women would truly add insult to injury.
Claire Methven O’Brien is Reader in Law in the School of Law, University of Dundee and a member of the Scottish Human Rights Commission. This article is written in a personal capacity. It is not intended and should not be understood, quoted or cited as representing the views of the University of Dundee, the Scottish Human Rights Commission or any other organisation.
[i] See e.g. Report on the Implementation of the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (Istanbul Convention) Shadow report SEX AND THE LAW IN THE UK December 2023.
[ii] UK government, Explanatory Memorandum on Council of Europe Convention on preventing and combating violence against women and domestic violence Command Paper No CP 674.
[iii] In Recommendation CM/Rec(2023)2 of the Committee of Ministers to member States on rights, services and support for victims of crime, (Appendix), secondary victimisation is defined as victimisation that…occurs not as a direct result of the criminal offence but as a result of the response of public or private institutions and other individuals to the victim’. See further in this context UN Doc. A/HRC/47/26/Add.1.
[iv] This is the Istanbul Convention’s only reference to gender identity, and was included following lobbying by the ILGA: see L. Sosa, ‘The Istanbul Convention in the context of feminist claims’ Ch.1 in J. Niemi, L. Peroni and V. Stoyanova (eds.), International Law and Violence Against Women Europe and the Istanbul Convention (Routledge, 2020). As Sosa also notes, although ILGA made efforts to secure additional textual amendments elsewhere in the draft Convention referring to LBTI identities these proposals were not accepted during the drafting process.