TRANSGENDER women will be banned from using female toilets, changing facilities and sports teams, following the publication of long-awaited guidance from the UK’s equalities watchdog.
The Equalities and Human Rights Commission (EHRC) guidance follows the Supreme Court ruling in April last year that said a woman is defined by biological sex under the Equality Act 2010.
The EHRC guidance has been repeatedly delayed, and was submitted to Women’s and Equalities Minister Bridget Phillipson in September last year. Phillipson requested several revisions before agreeing to publish it.
The Scottish Greens branded the guidance "authoritarian and cruel" and said it goes "far beyond" the Supreme Court ruling.
It contains instructions for businesses and public bodies on how to operate under the law following the Supreme Court ruling.
The updated guidance published by the Government on single-sex spaces has confirmed that a service must be used on the basis of biological sex in order for it to be classed as single-sex under the Equality Act 2010.
The guidance, published on Thursday, reads: “In separate or single-sex services, a trans man will be excluded from the men-only service because his sex is female, and a trans woman will be excluded from the women-only service because her sex is male.”
The guidance states that in relation to the Equality Act, "a person’s sex remains their biological sex, whether they have a GRC [gender recognition certificate] or not".
"For example, a trans man with a GRC is a woman and a trans woman with a GRC is a man, for the purposes of the act," it states.
The guidance adds: "Any sex-based rules or arrangements relating to participation in a gender- affected activity should be applied on the basis of biological sex. Therefore, trans people should not be included in single-sex or separate-sex competitions for the sex with which they identify."
Phillipson said that the ruling had “made it clear that sex means biological sex” under the Equality Act, “and that trans people are still protected by the act”.
The UK Government said the new code “gives organisations clear, workable guidance which will enable them to take a pragmatic approach to protecting and serving the needs of our society” and supports service providers such as hospitals, cafes and leisure centres “in ensuring they can make practical, and ultimately sensible decisions for everyday scenarios, such as toilet provision”.
The guidance also suggests it can be deemed legitimate, in limited circumstances, to ask someone to confirm what their sex is if “there is clear evidence of an issue with members of the opposite sex accessing or seeking to access the single or separate-sex service or association”.
The code states: “Evidence of such concern might include the individual’s physique or physical appearance, behaviour or concerns raised by other service users.
“However, service providers, those performing public functions and associations must keep in mind that it is not always possible to be sure of a person’s sex from their appearance.”
If someone is asked to confirm their sex, it should be done “as sensitively as possible, and must respect their privacy”, the code states.
In doing so, a provider must consider factors including whether concerns have been raised by other service users and “the nature of the service or facility in question”.
It is said to be “unlikely to be either practical or appropriate to approach any particular individual to make enquiries about their sex in relation to facilities, such as toilets, which are incidental to the primary service”.
The guidance states that if a service "admits trans people to a service intended for the opposite sex", then it no longer counts as a single-sex space.
"This means that if a service is provided only to women and trans women or only to men and trans men, it is not a separate-sex or single-sex service under the Equality Act 2010," it adds.
"A service like this is very likely to amount to unlawful sex discrimination against the people of the opposite sex who are not allowed to use it.
"A service which is provided to women and trans women could also be unlawful sex discrimination or lead to unlawful harassment against women who use the service.
"Similar considerations would apply to a service provided for men and trans men. It is possible to offer a mixed-sex service alongside a single-sex service. A mixed-sex service must be open to all service users."
It adds that if there is only a mixed-sex service available, this could "be direct or indirect sex discrimination against women who use the service or lead to unlawful harassment against them".
The guidance also sets out that a transgender person can be excluded from services relating to their biological sex if it is a "proportionate means of achieving a legitimate aim".
"For example, a trans man 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 excluding him is a proportionate means of achieving a legitimate aim," it adds.
Scottish Greens equalities spokesperson Maggie Chapman said: “This guidance is deeply troubling, authoritarian and cruel. An equality and human rights body should be advancing inclusion to defend every person in the country’s right to exist and fully participate in society.
"Yet, what we are seeing is the fundamental rights of marginalised people being rolled back even further.
“These changes will affect everyone. For trans people, for anyone who doesn’t fit societal norms, for business owners, social groups and workplaces, this guidance makes life harder for everyone.
It poses challenges, invasive questioning and suspicion, and puts people at real risk if they don’t conform to gender stereotypes.
“The people who will most feel the impact of this and worry about how they can go about their lives after today will be trans people and their loved ones. They are already enduring an onslaught of prejudice.
“Trans people just want to be able to go about their daily lives like anybody else, using facilities they need to use, without the fear of prejudice, discrimination or violence.
“The EHRC goes far beyond what the Supreme Court judgement did, and now the UK Government is willing to prolong a culture war in which most people probably have very little interest in participating."
