Updated guidance on single-sex public spaces came into force across most of the UK on Wednesday, despite opposition from trans-rights groups and many MPs.
The Equality and Human Rights Commission’s new code of practice says people must use facilities such as toilets and changing rooms according to their biological sex. It was updated following the Supreme Court judgment last April, which ruled that the terms “man”, “woman” and “sex” under the 2010 Equality Act referred to biological sex, rather than gender identity.
The equality watchdog says trans people should use either gender-neutral facilities or those that match their biological sex, a move welcomed by groups campaigning for sex-based rights. But critics say the code is difficult to implement, unworkable in practice and could lead to discrimination against trans people.
Where does the guidance apply?
It’s the EHRC’s services, public functions and associations code of practice that has been updated. That applies to organisations such as cafes, leisure centres, gyms and hairdressers, as well as public toilets, local sports clubs with at least 25 members, hospital wards, domestic violence shelters and rape-crisis shelters. It covers England, Scotland and Wales. (Northern Ireland uses different equality legislation, and is still considering the impact of the Supreme Court ruling.)
The code “does not impose legal obligations”, nor is it a “statement of the law”, said lawyers at Pinsent Mason. But it can be “used in evidence in legal proceedings”, so organisations are likely to treat it as “the most reliable guide for managing legal risk”. It is also “important to bear in mind” that the employment code, which guides workplaces, has not changed.
How will it be implemented?
Nearly 13,000 toilets and more than 5,000 changing rooms might need to be “revamped”, said Sky News. At least 18,000 signs may need changing. The building work could cost more than £14 million per year, an analysis by the Press Association suggests. Cleaning the new facilities could also cost public sector bodies, such as councils, more than £20 million. Both estimates “may be too low”, said Sky News.
Many organisations have already made changes they say are in line with the code. But some, such as Lambeth Council in London (run by Green Party councillors), say they might refuse to implement the guidance if advised that it’s lawful to do so.
What does it mean for trans people?
Organisations might be able to exclude trans people from single-sex spaces if they decide someone could “object” to their presence. If they allow trans women into women-only spaces, those will no longer legally qualify as women-only spaces under the Equality Act.
The code says that where it is “proportionate” for spaces to remain single sex, such as a rape crisis centre, then only those of the same biological sex should use them. But it would be “very unlikely to be proportionate to put a trans person in a position where there is no service that they are allowed to use”.
The code also notes that forcing a trans person to use services related to biological sex could amount to discrimination. It suggests gender-neutral “third spaces”, such as unisex lockable cubicles, should be provided where possible, said The Guardian.
What has been the reaction?
The guidance is “unworkable” and could “lead to widespread harm for trans people and those who don’t conform to gender stereotypes”, said a spokesperson for the Trans+ Solidarity Alliance. It also “puts businesses and charities in the crossfire of endless litigation”.
Critics question how organisations could visually identify biological sex. Legal action on how the code is implemented is likely, both from those who “think the guidance itself is wrong” and from gender-critical groups who “will want to challenge any organisations” they believe aren’t complying, said the BBC.
There are also criticisms about the delay in publication of the guidance. The draft was sent to the equalities minister, Bridget Phillipson, last September for approval.
After an amendment was made in June, 135 MPs, 69 from Labour, signed a motion calling for it to be scrapped, “primarily because of worries about its impact on transgender people”, said The Guardian. Those MPs are “increasingly doubtful” that the guidance is “workable in the real world”.
Labour MP Kevin McKenna, “questioned whether trans patients in hospitals could really be cared for in gender-neutral side rooms, given these are scarce and often needed for clinical reasons”. He said he feared the unsafe and impractical guidance “may not survive contact with reality”, and “will not make life any safer” for anyone.
However, Maya Forstater, from the sex-based rights charity Sex Matters, said: “The law is clear and the code is practical, giving many examples that apply to everyday services.”