TRANS people could be completely banned from accessing any single-sex spaces including changing rooms and toilets under guidance being prepared by the Equality and Human Rights Commission (EHRC), reports say.
While services will not be compelled to provide single-sex spaces, The Times reported that trans people could be barred from accessing any that do exist – whether those spaces align with their birth sex or their acquired one.
The difficulty stems from the fact that trans people will not be allowed to use facilities that align with their acquired gender – but can also be banned from using facilities that align with their birth sex, if they look too much like their acquired gender.
Draft EHRC guidance states: “For example, a trans man [who was born a female] might be excluded from the women-only service if the service provider decides that, because he presents as a man, other service users could reasonably object to his presence, and it is a proportionate means of achieving a legitimate aim to exclude him.”
The Times reported that the finalised guidance would have the same effect as this draft guidance. It will apply to organisations that provide public services, including shops, museums, gyms, prisons, and NHS departments, among others.
The statutory guidance, which will have to be approved by Labour’s Equalities Minister Bridget Phillipson, is further expected to say that trans people can be excluded from single-sex sports, and that people could object to trans people’s “presence” if they feel it is a vulnerable situation, such as changing clothes.
Services will be allowed to request to see people’s birth certificates to decide whether they are allowed in a single-sex space – but will have to tread carefully as doing so insensitively could be considered discrimination, The Times reported.
However, services will also have to provide suitable facilities for trans people to use, meaning a separate space may be the only option many places have.
The EHRC is facing a legal challenge over its draft guidance, with a full hearing due in November.
Good Law Project, who are bringing the challenge, claim the EHRC guidance goes “far beyond” the Supreme Court’s ruling, which said in April that sex must be considered biological under the 2010 Equality Act.
“It amounts to a bathroom ban for trans people, violating people’s right to privacy in their everyday lives,” Good Law Project said.
People have privacy rights under Article 8 of the European Convention on Human Rights, which campaigners argue may be breached by having to reveal biological details to use the toilet.
“We’ll be arguing in November that the EHRC was wrong to say employers can only provide gendered toilets based on ‘biological sex’, and wrong to ignore ways that companies and the public sector can provide trans inclusive men’s and women’s facilities,” Good Law Project said.
The EHRC has also faced criticism for the speed at which it has consulted on its draft guidance, using artificial intelligence to sift through 50,000 representations at a reported rate of 1850 per day. A legal challenge against the short consultation period was thrown out in June.
A spokesperson for the EHRC said: “The code of practice has not yet been finalised. We received an extremely high volume of responses to the consultation and are grateful to everyone who shared their feedback.
“To ensure we give these responses the consideration they merit, we are working at pace to analyse them and are amending the draft code of practice text where necessary to make it as clear and helpful as possible.
The news comes after a Scottish Government report found that negative media and political attention around trans people is impacting on gender healthcare, making it harder to recruit and retain staff.
“But our code will remain consistent with the law as set out by the Supreme Court.”
