The UK government has insisted it will take as much time as necessary to “get right” new rules on access to single-sex spaces after a leak of guidance submitted by the Equality and Human Rights Commission (EHRC) raised concerns that its publication was being deliberately delayed.
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 in September. Since then, its outgoing chair, Kishwer Falkner, has urged the equalities minister, Bridget Phillipson, to approve it “as soon as possible”.
Ministers are still considering the final guidance, which must be approved by Phillipson before being laid before parliament. Phillipson said on Thursday she was going through it “thoroughly and carefully”.
She told reporters: “I have responsibilities to make sure that’s done properly and we’re taking the time to get this right.
“This is an important area and we want to make sure that women have access to a single-sex provision – that’s incredibly important for domestic violence services, rape crisis centres, so that women are able to heal from the trauma they’ve experienced.
“But of course, trans people should be treated with dignity and respect.”
The children’s minister, Josh MacAlister, said that rushing out the new guidance could risk further legal action. “We’re doing this as fast as we can and there’s no deadline that we’re putting on it. We want to get it right, and if we don’t get it right, it does risk putting this back into the courts and providing even greater uncertainty for people,” he said.
On Thursday, The Times reported on a copy of the document, which it said had been leaked by Whitehall figures concerned that Labour is deliberately delaying publication to avoid a potential backlash.
Dozens of Labour MPs wrote to the business secretary, Peter Kyle, last month warning that the new regulations could cause chaos for many businesses, which have separately raised concerns they may be “unworkable” and could “undermine inclusion”.
MacAlister denied that the government was refusing to publish the guidance because it hoped the problem would go away, adding: “Three months is very little time in the grand scheme of things.”
According to the Times, under the new guidance, service providers such as hospital wards, gyms and leisure centres will be able to question transgender women over whether they should be using single-sex facilities such as toilets and changing rooms based on how they look, their behaviour or concerns raised by others.
The Times also reports that transgender people could be barred from single-sex services even when their biological sex matches, such as a trans man, who is biologically female but is “perceived” as a man, attempting to use a women’s changing room.
MacAlister told Times Radio that the government wanted to “avoid being in a position where toilets are being policed by people”.
“I just ask people to imagine small corridors where you’ve got a setup around toilets that’s pretty restricted and you’ve got – whether it’s a restaurant or a school or a gym – not that much space to play with. The guidance, as it’s written, has implications for both how physical buildings are set up, but also how staff in those settings would need to determine and judge even whether somebody might look like a woman.”
Later on Thursday, the prime minister’s spokesperson underlined the complexity of the issues involved and, while refusing to comment on the leaked version, added: “I do think you’d be hard-pressed to find people across the country who don’t think that a fellow human being should be treated with dignity and respect under the eyes of the law or in everyday life.”
The leak comes as concerned parties await the outcome of a judicial review of the EHRC’s interim advice on the supreme court judgment, brought by the Good Law Project, which some expect to conclude before the end of the year. It could have a significant impact on the legality of the guidance currently with ministers.
The new guidance 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.
Responding to the leak reports, Jude Guaitamacchi, the founder of Trans+ Solidarity Alliance, said: “These leaks reveal that not only does the EHRC’s proposed code of practice seek to require trans exclusion, it instructs service providers to police this based on appearance and gender stereotypes. This is a misogynist’s charter, plain and simple, and the government must reject it.”
