Considering gender diversity in gendered facilities and services (TAS/418/2023, issued on 30 April 2024)
The Ombudsman for Equality investigated on its own initiative how the exercise and sports services that provide access to toilets, changing rooms, showers and/or a sauna of City of X comply with the obligation laid down in the Act on Equality between Women and Men (‘Equality Act’) to promote equality and prevent discrimination based on gender identity or gender expression.
Exercise and sports services must be inclusive of gender minorities
The Equality Act prohibits discrimination based on gender, gender identity and gender expression. The principle underpinning the legislation is the idea of gender diversity and the facts that every person has their own gender experience and way of expressing gender and that they may not be discriminated against on this basis. The phrase ‘gender expression’ refers to expressing gender through clothing or behaviour or by other equivalent means.
Under the Equality Act, public authorities must promote gender equality in all their activities in a purposeful and planned manner. It is not sufficient for the authority to solely avoid discrimination. This obligation also applies to services provided by municipalities, for example exercise and sports services. It is essential to pay special attention to removing discriminatory structures and practices. Municipalities are also responsible for ensuring that the service providers handling the practical provision of the municipality’s services comply with the Equality Act in the provision of the public service.
The Office of the Ombudsman for Equality is regularly contacted in relation to the significance of gender, gender identity and gender expression in gendered changing rooms and showers and services, for example. The Ombudsman for Equality does not have any general instructions applicable in all situations on which gendered toilet, changing room or shower a person belonging to a gender minority should use in each situation and when denying access to a gendered facility is discrimination based on gender identity or gender expression prohibited in the Equality Act. Assessments are always made case by case.
Sports facilities and services with gendered changing rooms are environments in which persons belonging to a gender minority can be in a particularly vulnerable position. Unsuccessful or deficient solutions are associated with a risk of discrimination. It is important to strive to prevent discrimination in addition to investigating cases of discrimination appropriately.
As one tool to consider gender diversity and prevent discrimination, the Ombudsman for Equality has recommended creating gender-neutral facilities in addition to gendered facilities. Sometimes a person belonging to a gender minority may need more privacy than others or they may need temporary or permanent access to gender neutral facilities. In some situations, a good solution could be a badge that could be attached to a swimsuit that would indicate that the person has the right to wear their swimsuit in the showers and sauna, and installing privacy walls or other privacy solutions to showers and changing rooms. These would benefit those who are not part of a gender minority as well.
Discrimination can be prevented by ensuring that different gender identities and ways of gender expression are respected. The obligation to prevent discrimination purposefully and in a planned manner means that measures should be proactive and systematic. For preventing discrimination, it would be useful to increase awareness of the fact that gender identity and gender expression are unique and personal, because a lack of information and the related prejudices can lead to discrimination.
Because gender affirmation is not possible for minors, children especially may be faced with situations where they may be discriminated against. There is a need in exercise and sports services for children and young people in particular to implement measures that ensure that all children and young people have equal opportunities to participate in sports activities and hobbies without being discriminated against.
The Ombudsman for Equality has requested the City of X to create a plan and practices for concretely preventing discrimination and harassment based on gender identity and gender expression, for addressing any cases of discrimination discovered, and for promoting the equality of gender minorities in the City’s exercise and sports services.
07.05.2024
