(ii) the facilities or services are such that a user is likely to be in a state of undress and a male user might reasonably object to the presence of a female user.”
47. Further, there was an exception where it was likely that there would be physical contact between the user of the facilities and another person and that other person might reasonably object if the user was a woman: see section 35(2).
48. Part 5 of the SDA 1975 conferred further general exceptions. These included the following:
- (a) Section 44 provided that nothing prevented excluding men from women’s sporting competitions or other activities of a competitive nature where the physical strength, stamina or physique of the average woman put her at a disadvantage to the average man.
- (b) Section 46 made further provision about maintaining single-sex communal accommodation provided that the accommodation was managed in a way which “comes as near as may be to fair and equitable treatment of men and women”.
- (c) Section 49 provided for ensuring appropriate representation on the bodies of trade unions, employer organisations and other professional or trade bodies. Where the body concerned was made up wholly or mainly of elected members it would not be unlawful to reserve seats on the body for persons of one sex in order to ensure that a minimum number of persons of that sex were members, if this was needed “to secure a reasonable lower limit to the number of members of that sex serving on the body”.
49. The SDA 1975 was amended in important respects before being repealed by the EA 2010. In 2005 and 2008, provisions were inserted by the Employment Equality (Sex Discrimination) Regulations 2005 (SI 2005/2467) and the Sex Discrimination (Amendment of Legislation) Regulations 2008 (SI 2008/963) to prohibit discrimination against women on the ground of pregnancy or maternity leave both in employment (section 3A) and in the provision of services etc (section 3B).
50. What we draw from this consideration of the SDA 1975 are the following points.
51. First, there can be no doubt that Parliament intended that the words “man” and “woman” in the SDA 1975 would refer to biological sex – the trans community of course existed at the time but their recognition and protection did not.
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