Businesses across the UK fear that new guidance from the Equality and Human Rights Commission (EHRC) on the use of toilets and changing rooms will be “confusing”, “unworkable” and could “undermine inclusion”.
The LGBTQ+ rights charity Stonewall has written to the newly appointed business and trade ministers to highlight the significant costs of compliance for struggling companies.
The equalities watchdog submitted its formal guidance on how public bodies, businesses and other service providers should respond to April’s landmark supreme court ruling on biological sex to the UK government earlier this month, with its chair Kishwer Falkner, admitting it would be “difficult” for many to adapt.
It is expected to closely reflect interim advice released by the watchdog in April, which in effect banned transgender people from using facilities according to their lived gender, and to allow services to request birth certificates to ensure single-sex services are protected.
The updated code of practice for service providers, associations and those delivering public functions is now before the equalities minister, Bridget Phillipson, for approval, after a six-week consultation that was criticised for its brevity and use of AI to analyse more than 50,000 responses.
In the letter to Peter Kyle and Chris Bryant, the equalities charity writes: “The guidance as it stands fails to provide practical examples and clear guidance on how to implement changes necessary to comply with the law.”
The letter argues that, when the Equality Act 2010 was passed, the impact assessment estimated costs in the first year alone could amount to more than £300m – but despite repeated questioning, neither the EHRC nor the UK government appears to have assessed the regulatory burden and financial costs of implementing this new guidance.
The EHRC says it expects implementation costs to differ for each organisation. In a recent BBC interview, Falkner advised them to take “practical steps according to their own circumstances in their own organisation. Which is why we’ve always emphasised that they should take their own [legal] advice, as well as adhering to our code”.
Kate Nicholls, the chair of UKHospitality, said it was “critical” that the final guidance is as clear as possible: “While the EHRC is clear in its intentions, there will be confusion among operators about how this should be applied in hospitality, where venues differ drastically in terms of size, space and age of buildings. For example, requiring multiple toilet facilities in small or listed buildings is often not logistically possible.”
A spokesperson from the Co-op said: “We remain deeply concerned about the potential impact of the forthcoming EHRC guidance.
“Our priority is to provide safe and welcoming spaces where all colleagues and customers feel a genuine sense of belonging and safety. The interim guidance did not deliver the clarity needed to protect individual rights, and we are concerned it could undermine people’s sense of inclusion and expose them to challenging situations.”
Rosalyn Berrisford, the UK managing director of the global affiliate marketing company Awin, said the proposals risk undermining its commitment to inclusion and would pose “significant operational challenges”.
“At our London office, gender-neutral facilities are limited, and we do not collect data on whether staff or visitors are transgender. Nor do we believe it appropriate to request personal documentation such as birth certificates, as suggested in the EHRC’s guidance. Enforcing access restrictions to basic amenities, or directing trans individuals to separate facilities outside the main office, is neither practical nor aligned with our values.”
Alex Whitcroft, director at KIN, a housing developer based in London and Bristol, said the proposed guidance was “completely unworkable, especially for small businesses, and even more so for construction sector businesses like us whose staff visit shared offices and construction sites”.
This comes a week after hundreds of businesses including Ben and Jerry’s, Allianz Commercial and Lush – as well as smaller cafes, pubs and beauty studios – wrote to Phillipson and Kyle and warned that “the lack of clarity on when and how organisations can remain trans inclusive would leave every business vulnerable, with each one effectively becoming a test case waiting to happen”.
That letter, organised by Trans+ Solidarity Alliance and Safe Space UK and first published in the Independent, also warned businesses were being asked to “adopt practices that are incompatible with modern business values”.
