Equalities watchdog’s trans guidance ‘contradicts true meaning of equality’, experts warn

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

Britain’s equalities watchdog has denied claims that it is encouraging single-sex services to “blanket ban” trans people – though experts say otherwise.

The Equalities and Human Rights Commission on Monday (4 April) issued new guidelines to separate and single-sex service providers.

LGBT+ campaign groups were quick to point out to PinkNews that the guidelines were more or less a manual on how services could lawfully exclude trans people, with or without a Gender Recognition Certificate.

The Trans Legal Project, a legal research group, said the advice amounted to an invitation for providers to “blanket ban” trans Britons. This is despite a written assurance from the EHRC last year that the commission encourages a “case-by-case approach”.

In a letter to the Trans Legal Project dated 27 July 2021 seen by PinkNews, the commission elaborated on its legal position on trans equality.

The Trans Legal Project said it raised its concerns with the EHRC that the watchdog would allow “blanket bans” excluding trans women from single-sex services.

Melanie Field, then the EHRC’s joint-acting chief, quoted the EHRC’s statutory code of practice that supports a “case-by-case basis” in response to fears that “indirect discrimination can be justified on a blanket basis”.

“As stated at the beginning of this chapter, any exception to the prohibition of discrimination must be applied as restrictively as possible and the denial of a service to a transsexual person should only occur in exceptional circumstances,” the code reads.

“We have therefore been clear that a case-by-case approach is required and this approach has been endorsed by the High Court,” Field said.

“The [EHRC] has fulfilled its duties through setting out guidance on the law which says that the exceptions allowing exclusion of trans people from single and separate sex services must be applied restrictively on a case by case basis,” she concluded.

So-called equalities watchdog’s guidelines ‘does not justify the discrimination’, says law firm

Less than a year later, the ERCH’s apparent U-turn on its promise has left the Trans Legal Project feeling frustrated and betrayed.

“We are disgusted that the EHRC has gone back on its written assurance and has produced guidance that claims that in some circumstances blanket bans against trans women are lawful,” the group said.

“The guidance gives examples of blanket bans against trans women from attending group counselling for victims of sexual assault, domestic abuse refugees, women-only fitness classes and using the women’s toilet in a community centre.”

And legal experts agree. A City Law Firm, a London-based law firm, said: “The guidance does not justify the discrimination, as would be required in law under the Equality Act, to permit this action.”

“Discrimination is only justified when it meets ‘proportionate means of achieving a legitimate aim’,” the firm explained. “There is no such convincing evidence to show that banning transgender persons from using single-sex space is benefitting cisgender or harming cisgender.

“As such the new EHRC advice contradicts the true means of ‘equality’ or justifying discrimination. It should also be highlighted this is ‘guidance’ not law, but no doubt this will be impactful and influential.”

When asked if the advice is an invitation for service providers to “blanket ban” trans people, an EHRC spokesperson denied this was the case.

“We are not encouraging ‘blanket bans’,” they told PinkNews.

“Instead, the guidance sets out there are exceptions where services can be provided differently under the Equality Act provided the reasons are justified and proportionate – in other words, you can’t provide a service differently without a good reason.”

EHRC said a ‘person without a GRC cannot claim discrimination for gender reassignment’

But the letter to the Trans Legal Project appears to suggest that the seeds had already been sown by 2021.

In the letter, Field wrote: “Following the introduction of the [Gender Recognition Act], the legal sex of a trans person with a GRC is their lived gender as confirmed in their GRC. The sex of those without a GRC is their birth sex.”

“It follows from our position set out above that we think that it is unlikely that a trans person without a GRC can claim direct discrimination on the grounds of gender reassignment if they are denied access to a single or separate sex service that corresponds with their lived gender,” she added.

Field’s remarks in the letter appear to align with the EHRC’s recent guidelines which refer to trans women without a GRC as “biologically male”. The Equality Act does not use the phrase “biological sex” at any point.

Under the Equality Act, trans people could be excluded from single-sex spaces to achieve a “legitimate aim”. Such an aim, the EHRC advised, can include if a trans person using the service infringes on another user’s “dignity” or “safety”.

Mermaids, a trans youth charity, told PinkNews this seemingly suggests that trans people are “inherently dangerous” and “risk creating trauma to others simply by existing”.

“This is extremely harmful and actively encourages fear-mongering and bigotry towards the trans community,” Mermaids added.

EHRC chair Kishwer Falkner speaks tot eh camera

Baroness Kishwer Falkner, chair of the Equalities and Human Rights Commission. (YouTube/ UBS Centre)

In the letter, Field also referenced a 2013 High Court case in which a judge ruled that a trans prisoner could not be discriminated against on the basis of gender reassignment unless they had a GRC.

“[Kimberly Green] is a post GRA decision which sets a precedent and is of general applicability to the question of who the correct comparator is in a direct discrimination case, rather than one which is likely to be confined to its facts,” Field wrote.

A “comparator” in equalities law is someone in the same or similar situation to someone discriminated against but who does not have the same protected characteristic.

In this case, the judge ruled that a trans woman’s comparator would be that of a cisgender man, who would be excluded from the single-sex service.

For the Trans Legal Project, the EHRC’s guidelines have frayed what was already a threadbare relationship between it and the LGBT+ community.

In recent months, the EHRC has been rocked by scandals around its increasingly anti-trans sentiments. Former staffers have claimed that EHRC chair Kishwer Falkner had to be talked down from adopting “a totally gender-critical position“.

“It is obvious to everyone, not just lawyers, that guidance suggesting excluding all trans women without exception from the women’s toilet is lawful, is just that,” the project said.

“Given trans women are at different stages of their transition, any blanket ban against all trans women must be driven purely by bigotry.

“It is unbelievable that a body that has a under a statutory duty to encourage a society where trans people are not restricted in their potential by prejudice or discrimination has published guidance that claims that blanket discrimination against them is legal.”