Guidance on how to implement the landmark supreme court ruling on gender is being adapted to lessen its impact on businesses and to ensure it tries to balance single-sex spaces with the lives of transgender people, the Guardian has been told.
Lawyers from the Equality and Human Rights Commission (EHRC) are understood to be in discussions with government lawyers over the practicalities of guiding businesses and other institutions about last year’s ruling that the legal definition of a woman is based on biological sex only.
While talks have been going on since the EHRC’s guidance was sent to ministers in September, there has been what is viewed as a change in approach from the equalities watchdog since its new chair, Mary-Ann Stephenson, took over late last year.
Under law, the EHRC cannot unilaterally change a code it has submitted – this can happen only if ministers reject the draft and request amendments. But Stephenson is viewed as more open to listening to concerns about its implementation than her predecessor Kishwer Falkner.
Falkner oversaw interim advice from the EHRC on implementing the new legal landscape, which prompted alarm that it could effectively exclude trans people from the public realm, saying they should not be allowed to use toilets meant for the gender they live as, and that in some cases they could not use toilets consistent with their birth sex either.
The watchdog withdrew that advice in October. Falkner repeatedly criticised ministers for not implementing the subsequent code of practice rapidly, despite worries among officials and some MPs about its potential impact.
“We have to get this right, and this takes time,” one government source said. “But it is fair to say that we are finding the EHRC more constructive under the new chair than the old one.”
Any changes will not water down what the government says is a commitment to single-sex spaces, which was the central repercussion of the supreme court ruling. However, the hope is that a more pragmatic approach could limit the impact on trans people, and avoid excessive costs and confusion for businesses in terms of changes to toilets and changing rooms.
A number of MPs, many of them Labour, who had warned about the possible impact of being too literal in implementing the EHRC’s guidance, have also said they are reassured by the approach taken under Stephenson, who has a particular background in women’s rights.
Bridget Phillipson, the education secretary, who also holds the equalities brief, has faced criticism for the delay in publishing the final guidance, with some opponents suggesting she has been motivated in part by efforts not to annoy Labour MPs.
But officials argue that the guidance must be legally watertight to avoid it being stuck in judicial review challenges. There is also a desire to wait for a verdict in a high court challenge to the EHRC’s response by the Good Law Project campaign, in case this changes the legal picture.
Rachel Taylor, a Labour MP who is a member of the Commons women and equalities committee, said: “The EHRC’s interim guidance was disproportionate, unfair and unworkable, so I would welcome efforts by the government to work with the new EHRC chair to ensure the final guidance upholds the rights of women and trans people and can reasonably be implemented by businesses.”
A government spokesperson said ministers were reviewing the EHRC’s code of practice “with the care it deserves, engaging with the EHRC to ensure that it provides clarity for service providers”.
An EHRC spokesperson said the watchdog was “convinced that our updated services code of practice is both legally accurate and as clear as it is possible to be”, and that it was waiting to hear from Phillipson’s office about whether or not it had been approved.
