Equalities watchdog publishes ‘appalling’ guidance on excluding trans people from single-sex spaces

Kishwer Falkner, chair of the EHRC, speaking in the House of Lords.

Britain’s so-called equalities watchdog has published guidance on single-sex spaces that essentially includes a how-to guide on excluding trans people.

On Monday morning (4 April), the Equality and Human Rights Commission (EHRC) published its long-promised guidance for separate and single-sex service providers, offering its interpretation of the Equality Act with regards to trans inclusion.

The EHRC called on services to prioritise users’ “dignity and respect” when deciding who can and who cannot use their services, and states that providers should balance the “rights and needs of trans people” with the “different interests and needs” of users.

The guidance goes on to offer ways in which trans people can be included – and excluded – lawfully.

One example illustrates how a business might ban trans people from the appropriate toilet for their gender, instead banishing them to a separate “gender neutral” facility or instruction them to use “the toilet for their biological sex”.

Another example suggests a scenario of trans women being excluded from women-only fitness classes “because of the degree of physical contact involved in such classes”.

The Trans Legal Project slammed the guidance as “appalling and harmful”.

“It encourages bigotry and discrimination,” the project, a legal research group, told PinkNews.

“Its ‘examples’ include invitations to organisations to blanket ban trans women from exercise classes and women’s toilets on a ‘biological’ basis.”

Under the Equality Act, trans people can be excluded from single-sex spaces to achieve a legitimate aim.

But “bigotry is not a legitimate aim,” the Trans Legal Project argued. “Nor is trying to drive trans people completely out of society because of ungrounded and confected fears.”

The Good Law Project told PinkNews that the guidance is the latest in a string of examples of the EHRC “throwing trans people under a bus”.

What do the EHRC guidelines say?

The guidance makes multiple references to biological sex, “because this is how legal sex is defined under the Equality Act for people who do not have a Gender Recognition Certificate”. The phrase biological sex does not appear in the Equality Act.

In parts, when discussing trans inclusion, it refers to people “of the opposite biological sex”.

When it comes to drafting access policies, the EHRC says that providers can “exclude, modify or limit trans people’s access where a service provider has limited resources and physical space to alter the way the service is provided or if they are dealing with groups with particular needs”.

Stating that banning trans folk can only be done if there is “good reason based on evidence” to do so, the EHRC lists examples of providers having or do not have a “legitimate aim” to ban trans users.

One reads: “Example: A community centre has separate male and female toilets. It conducts a survey in which some service users say that they would not use the centre if the toilets were open to members of the opposite biological sex, for reasons of privacy and dignity or because of their religious belief.

“It decides to introduce an additional gender-neutral toilet. It puts up signs telling all users that they may use either the toilet for their biological sex or to use the gender-neutral toilet if they feel more comfortable doing so.”

The trans-led charity Gendered Intelligence called this “both distressing and contradictory”.

“For years we have pressed for clarity on the application of single-sex exemptions in the Equality Act,” a spokesperson told PinkNews.

“Rather than providing this clarity, the EHRC guidance only serves to widen the exemptions and expand the exclusion of trans people. The example of the community centre extends ‘proportionate means of achieving a legitimate aim’ to exclusion of trans people from bathroom facilities based on public opinion, seemingly suggesting that the existence of trans people is an affront to public dignity.

“Where is the care for the dignity and wellbeing of trans and non-binary people? Or, for that matter, for the gender non-conforming cis women who will undoubtedly be targeted in the wake of this guidance?”

The toilet example suggests that a service could effectively institute a blanket ban on trans people. The EHRC’s own Codes of Practice on the Equality Act say that such policies should be applied “on a case-by-case basis”.

People hold up trans pride flag, non-binary flag and progressive pride flags in a protest outside Downing Street

Trans people and supporters protest outside Downing Street calling on the UK government to urgently reform the Gender Recognition Act on 6 August 2021. (Wiktor Szymanowicz/Barcroft Media via Getty)

Jo Maugham, barrister and director of the Good Law Project, said the guidelines could have been much, much worse.

“If you think this version is bad, you should read previous iterations,” he told PinkNews.

Indeed, a draft version of the guidance leaked to Vice World News in February appeared to show that the EHRC was going to advise prisons, gyms and other businesses to ban trans people from their services unless they have a GRC.

Since the Gender Recognition Act came into force in 2014, fewer than 5,000 people have successfully gained a GRC. Around 200,000 to 500,000 trans people are estimated to be living in Britain.

Former staffers told Vice that they had talked EHRC chair Kishwer Falkner down from adopting “a totally gender-critical position”.

Maugham added: “It is extraordinary that a body statutorily charged with protecting the dignity and rights of trans people is having to be restrained by civil servants from throwing them further under a bus.”

Gendered Intelligence said: “The EHRC has failed in its duty to independently advocate for equality and human rights.” It added that the guidance “is also a sign of how far the EHRC has slipped from the public pulse”.

“The vast majority of businesses, organisations and establishments have no interest in excluding trans people, and we must not let our public lives be impacted by the actions of a few powerful individuals,” a spokesperson added.

EHRC guidance, which applies to England, Scotland and Wales, is not the law – it is an interpretation of current legislation. Organisations are in no way required to follow it.

Trans people are protected under Equality Act by the “gender reassignment” protected characteristic, which is defined as someone who is “changing [their] physiological or other attributes of sex” regardless of whether they have a Gender Recognition Certificate (GRC) or not.

In its guidance, the EHRC makes clear that when deciding whether trans people can access services, providers shouldn’t demand to see a person’s GRC as it would breach their privacy.

“You should also not make assumptions about whether or not a person is trans based on gender stereotypes, such as those based on appearance or clothing,” the guidelines continue.

The EHRC also recommends that if trans folk are barred from a service, the provider should signpost trans-friendly resources.

“Far from clarifying how the single-sex exemptions in the Equality Act should be used, the EHRC’s latest non-statutory guidance is likely to create more confusion,” a Stonewall spokesperson told PinkNews.

“It appears to go against the core presumption of the Act which is that inclusion should be the starting point, and shifts the focus towards reasons trans people, and specifically trans women, can be excluded.”

PinkNews contacted the EHRC for comment.