Contrary to what Kishwer Falkner is suggesting (Letters, 28 October), MPs’ problem with the Equality and Human Rights Commission’s (EHRC) guidance was not that it failed to address every conceivable scenario, but that it set out fundamentally unworkable instructions to businesses that go far beyond what the supreme court actually ruled, and which places them at risk of costly litigation.
Take the question of using a gendered bathroom – hardly a niche issue, given it is something most of us do on a daily basis. The EHRC’s guidance places the onus on businesses to police whether people are using a bathroom that corresponds with their sex assigned at birth.
However, there is no practical way for businesses to know whether someone is transgender – based solely on their appearance – and challenging people risks humiliation for trans people and others whose appearance doesn’t neatly fit with society’s expectations. I have already heard appalling stories of women being aggressively challenged while waiting in a queue for the bathroom. Policing this puts businesses at serious reputational and legal risk, but under Lady Falkner’s leadership the EHRC has chosen to ignore warnings about the contradiction between possibly being sued for challenging someone’s gender versus being sued for failing to.
This makes even less sense when you consider that the supreme court said businesses could choose to exclude trans people from single-sex spaces when it is a “proportionate means of achieving a legitimate aim”, not that they must exclude them.
Having questioned Lady Falkner as a witness on the Commons women and equalities committee, I have been concerned by her refusal to even acknowledge the difficult situation the supreme court judgment has placed transgender people in – many of whom have been using the toilet of their assumed gender and going about their lives without issue for decades until now.
Under her leadership, the EHRC has adopted an ideological interpretation of the judgment which is not shared by many legal experts. That position risks marginalising transgender people, like the veteran I met recently who has been excluded from the women’s motorbike club she has enjoyed for years. It also leaves businesses and their staff caught in the crossfire of the increasingly bitter gender wars, while doing absolutely nothing to advance women’s rights or protect vulnerable women from abuse.
I hope when Lady Falkner’s successor starts in post next month that she will take a far more balanced and consensual approach to tackling some of the very real and difficult issues that upholding all of our rights entails.
Rachel Taylor MP
Labour, North Warwickshire and Bedworth; member of the women and equalities select committee
