TRANSGENDER people have been left with “less rights” following the publication of the UK equalities watchdog’s guidance on single-sex spaces, an advocacy group has said.
On Thursday, the UK Government published the long-awaited guidance from the Equalities and Human Rights Commission (EHRC), which banned trans women from using female toilets, changing facilities and sports teams.
The repeatedly delayed Code of Practice follows the Supreme Court ruling in April last year that said a woman is defined by biological sex under the Equality Act 2010.
It contains instructions for businesses and public bodies on how to operate under the law following the judgment, and explicitly states that in separate or single-sex service “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 also says that trans people “should not be included in single-sex or separate-sex competitions for the sex with which they identify."
The 340-page document is still under review by advocacy groups and charities supporting LGBT+ rights, who are trying to establish the full implications of its contents. It was published on Thursday evening, as the House of Commons rose for recess.
TransActual UK, a national advocacy organisation, described the guidance as leaving trans people in the UK “with less rights than they had prior to last year’s Supreme Court ruling”.
“Not only does this new guidance fail to protect the rights and dignity of transgender people, but appears to have weakened protections for the LGBT+ community as a whole,” a statement from the group said.
“Rather than engage with our community with respect, the Government has instead withheld publishing its new Code of Practice until as late as possible.
“TransActual will continue to fight for equal access to public life for all trans people, and will publish our full thoughts on the new Code once we have had the time to properly scrutinise it – something that the Government seems keen to avoid.”
The Trans+ Solidarity Alliance director, Alexandra Parmar-Yee, said the guidance was “a section 28 moment for this Labour government” and “worryingly similar to a US bathroom ban condemned by the UK Foreign Office in 2016”.
LGBT+ charity Stonewall said it would be taking time to “digest” the Code of Practice and how services public functions and associations can be “inclusive in line with the law”.
“Many trans+ people have already experienced the damaging impact of policies designed to exclude them and, for far too long, have been at the heart of a toxic culture war,” the charity said in a statement.
“The UK, once a leader, has plummeted in LGBT+ equality rankings in Europe over the last decade. Government and all parliamentarians must take equality seriously.”
Scottish Trans, part of the LGBT+ charity Equality Network, raised concerns on BlueSky that there was “no guarantee” MPs will debate or vote on the code.
“After 40 days an order from the Secretary of State can make it statutory guidance. It's now very unlikely that the Code can or will be changed before it's brought into effect,” they said.
“It will take some time for organisations to scrutinise the Code in full, and even longer to see how services, public bodies and associations put its advice into practice.”
Amira Campbell, NUS UK President, said the guidance will “functionally exclude trans people from engaging in public life”.
Good Law Project said that there had been “big changes” since the previous “transphobic draft”, but that the code was “not good enough”.
“It’s good to see clear guidance that associations can be for multiple protected characteristics – so you can have an organisation for both cis and trans women,” trans rights lead Jess O’Thomson said.
“And the suggestion of checking people’s birth certificates before they can use the toilet has been axed.
“But it still treats trans people as a third sex, suggesting they should be made to use separate spaces – entirely ignoring the harm this causes, and human rights law. We will keep fighting this discriminatory approach.”
The Scottish Government said it would consider the guidance “carefully” pending its approval.
Social Justice Secretary Shirley-Anne Somerville said: “It remains the responsibility of employers and service providers to interpret and comply with their legal obligations including the Equality Act 2010.
“As the First Minister has made clear, the Scottish Government accepts the judgment of the Supreme Court.
“The Equality Act also expressly prohibits discrimination and harassment against trans people, who are valued members of our society and are entitled to dignity, respect and protection under the law and in all areas of life.”
Labour MP Sarah Owen, the chair of Westminster’s Women and Equalities Committee, said she fears that a “hellish limbo” will continue for trans people and that she expects legal challenges against the guidance to be brought.
Owen said the “devil is in the detail and delivery", adding: “For too many though, the damage done to them and to their families in this interim period has been devastating and needless."
The committee will ask the EHRC chairwoman Mary-Ann Stephenson and Minister for Women and Equalities Bridget Phillipson to answer questions on the revised code of practice as soon as possible, she said.
Elsewhere, gender critical campaigners celebrated the contents of the code. For Women Scotland – who brought the original case to the Supreme Court – said the guidance is “a significant milestone in ensuring women’s rights are upheld and protected across the UK”.
