The Equality and Human Rights Commission (EHRC) has laid out its new Code of Practice for services, public functions and associations, its guidance to service providers on how it should interpret last year’s Supreme Court ruling on the Equality Act’s definition of sex. Despite the EHRC’s claims that this Code of Practice brings ‘clarity’, the guidance itself is unclear, unworkable, and amounts to a significant rollback of trans rights.
The new Code of Practice is minimally changed from the interim guidance that the EHRC put forward last year, which called for service providers to begin excluding trans people from single-sex services.
The Code of Practice represents not only a move to remove trans people from public life, but also gives trans-exclusionary misogynists the tools to wage further lawfare against service providers that want to remain trans-inclusive, and encourages a new wave of gender policing at a time where misogyny is already on the rise.
There is already a move to scrap the Code of Practice, which we should be mobilising to lobby MPs to support, but beyond this, we should also be seeking to update the Equality Act to undo the damage caused by the Supreme Court ruling, and building a trans liberation movement capable of reversing the damage of recent transphobic attacks, and winning actual gains for trans people beyond that.
What has not changed is that trans people are still afforded protection from sex discrimination. However, the EHRC has now opened the can of worms that is legal protection on the ‘perception’ of sex.…
4.53 A trans woman is a member of an association and applies to become treasurer, but her application is rejected. She is told by the Chair of the association that this is because they want a man to take the role on as they do not think a woman could do the job as well. This is less favourable treatment because of sex. The trans woman would have a claim for direct discrimination because of her perceived sex as a woman, no less than if she were a biological woman.
The EHRC itself makes no attempt to suggest when a trans woman can or cannot be assumed to be perceived to be a cis woman, offloading this problem back onto the courts. If this Code of Practice is ratified by Parliament, we may very well see sex-discrimination cases that hinge on arguments of whether or not a woman was perceived to be a cis woman. This goes beyond impacting trans women (although it will be trans women who face the brunt of this) and will usher in a new age of policing femininity, and is a perfect example of how anti-trans legislation only serves to reinforce misogyny.
Beyond making protection from sex discrimination dependent on perception, the main substance of what the EHRC has changed in this new Code of Practice is summarised here…
13.130 If a service provider (or a person providing a service in the exercise of public functions) admits trans people to a service intended for the opposite sex, then it can no longer rely on the exceptions set out at paragraphs 13.99 to 13.111. 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.
Essentially, the EHRC is suggesting that service providers are no longer able to operate single-gender services, i.e. a ‘women-only’ service opens itself up to legal challenge from men excluded from the service. Instead, if a service provider wants to operate such a service, it must admit trans men and exclude trans women to comply with the law under this new Code of Practice.
The only ‘gain’ given to service providers as a result of last year’s Supreme Court ruling is the ability to provide a single-sex service that excludes trans people that would naturally use it (i.e. trans women excluded from women-only services). Under the EHRC’s interpretation, the previous understanding of the Equality Act meant that a ‘single-sex’ service provided only women would open itself up to legal challenge from trans women excluded from the service, or cis men excluded from the service if it admitted trans men. Where anyone refers to this new Code of Practice as any sort of “win for sex-based rights”, this is what they are referring to.
This change effectively abolishes women-only and men-only spaces: e.g. a women-only service could previously exclude trans men by default, but now cannot. However, the EHRC does provide enough cover to allow trans men to be excluded from both men’s and women’s single-sex services on a ‘case-by-case’ basis, although with no attempt to explain when it would consider this to be reasonable.
13.128 […] The gym should also consider whether a service user may have a reasonable objection to a trans man accessing the gym and, if so, whether it is necessary to exclude them. This will be a question of proportionality and will depend on all of the circumstances, including the extent to which the trans person presents as the opposite sex. For this reason, they should only consider doing this on a case-by-case basis.
Of course, whatever the EHRC’s Code of Practice says, simply declaring that trans people be barred from the single-sex spaces that they have been using for as long as single-sex spaces have existed will not make it so. What it does do, is legally threaten any service providers that want to provide trans-inclusive single-sex services. A service provider may still provide a service to, for example, cis women and all trans people, but would no longer be legally protected to provide a service for cis and trans women only.
Legal threats have been a core part of the anti-trans movement in recent years. Even before this new Code of Practice was released, both the Women’s Institute and Girlguiding announced that they would no longer be admitting trans women and girls, not because those organisations necessarily wanted to implement such a ban, but because they were threatened with legal action if they did not implement one. Small organisations have always faced this risk, regardless of the law, because any person or group with deep enough pockets can bring spurious legal claims against small organisations that cannot afford to challenge a claim in court. What this new Code of Practice does is make those claims much less spurious, such that organisations that would challenge such a claim are more likely to lose any legal fight.
The Code of Practice is aimed at organisations. The Code of Practice does not put trans people at legal risk for using single-sex services that align with their gender/current sex. Where the EHRC calls for trans people to be excluded from single-sex services, it will be the responsibility of service providers to enforce this exclusion.
It’s worth going beyond what the Code of Practice says to consider the actual impact that it will have if ratified by Parliament. The obvious and immediate impact will be banning trans people from single-sex spaces; but it will also have a wider impact on trans people (e.g. employers, who were already less likely to hire trans people, will be incentivised to avoid hiring trans workers to avoid legal hassle); it will impact disabled people as trans people whose facilities may be the only gender-neutral facilities available to trans people now excluded from single-sex spaces; it will escalate transphobic and misogynistic rhetoric; and it will embolden trans-exclusionary misogynists to push for even further anti-trans legislation and enforcement (this Code of Practice is not the ‘end goal’ of the anti-trans movement, it’s just another step towards the ultimate aim of removing trans people from society entirely).
Given the headline impact from this new Code of Practice is the effective segregation of trans people out of public spaces, it is telling that the code specifically highlights that segregation on the basis of any protected characteristic other than race is not discriminatory by default.
4.14 There is no equivalent statutory rule that segregation automatically amounts to less favourable treatment for protected characteristics other than race.
There are several ways that this segregation is likely to be enforced, including: self-exclusion; direct enforcement; indirect enforcement; and legal challenge.
Perhaps the most common means of enforcing a ban of trans people from single-sex services will be from trans people themselves. In an environment where trans people are being subject to worsening anti-trans rhetoric, harassment, and violence, some trans people will avoid using single-sex services to avoid the risk of potential harassment. This already happens, with trans people sometimes avoiding using public bathrooms, seeking healthcare, or being involved in sporting groups for fear of harassment they might receive as a result, but again, the EHRC’s new Code of Practice will make this even more commonplace.
The EHRC is likely relying on this to be a key part of its enforcement, as it makes sure to tell service providers that if they provide a single-sex service, they must remind trans people that they are excluded from it…
13.166 It is likely to be a legitimate aim for a service provider, a person exercising public functions or an association to seek to ensure that service users understand that the service or the association is a single or separate-sex service or association, under the Act. Read paragraphs 13.92 to 13.152 for further detail on single- sex services. Doing so is likely to be necessary as part of the lawful provision of such a single or separate-sex service or association.
13.167 In many cases, the primary means of ensuring that lawful provision is to clearly communicate to potential service users or members that those services are available to those of the same sex only. This should be done by using proportionate means which are likely to be effective. These may include signage, promotional materials including online and hard copies and verbal information provided as part of any enrolment, admission or induction process.
Some organisations that want to exclude or segregate trans people from their services will use this Code of Practice as an opportunity to do this. Likewise, some organisations that would otherwise not want to segregate trans people will do so for the sake of covering themselves from legal action. In most cases, the enforcement will come in the form of policy telling trans people not to use the single-sex services that align with their gender. In some cases, enforcement may extend to tasking staff with challenging anyone they suspect may be trans when they try to use single-sex services, although this level of enforcement is probably not going to be widespread even amongst organisations that would want to implement it.
Most organisations are unlikely to make much of an attempt to enforce any sort of trans ban/segregation policy, although in many cases because of the cost (both material and reputational) rather than any sort of strong political opposition. What is much more likely is that individual bigots will be emboldened to harass anyone who they perceive to be trans accessing single-sex services. There has already been an increase in gender non-conforming women being harassed on suspicion of being trans, but if the EHRC’s Code of Practice is ratified, this is likely to get worse.
This gender vigilantism is already being encouraged by MPs. In a debate on the EHRC Code of Practice, Minister for Equalities Seema Malhotra suggested that
“Most people have the common sense to step in when necessary, when a person of the opposite biological sex enters a single-sex facility in error, for example, or to know when to alert a member of staff.”
The Code of Practice itself hand-waves away how enforcement should work wherever it comes up. You can see it in passages like the below…
13.168 Where, regardless of such communications, 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 in question, it may be legitimate to ask individuals to provide confirmation that they are of the eligible sex by proportionate means. 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. Whether it is legitimate to approach any particular individual to make enquiries about their sex will be a sensitive question that will depend on all the circumstances.
In just this one section, the EHRC says that gender policing is a legitimate method of excluding trans people from single-sex services, suggests that physical appearance is sufficient evidence, suggests that physical appearance is not sufficient evidence, and says that actual enforcement “will depend on all the circumstances”.
This seems confused because the EHRC is trying to dress up its transphobia and misogyny in respectability. While the purpose of this Code of Practice it to exclude trans people from single-sex spaces, the EHRC avoids outright telling service providers to start banning any women who doesn’t look sufficiently feminine from women-only spaces (because this would be unpopular, make it clear how the Code of Practice harms all women, be too obviously transphobic, and not actually be effective at banning all trans women).
The creation of this ‘legal grey area’ by the EHRC will mean that, while organisations will try to avoid enforcement, trans-exclusionary misogynists will feel emboldened to try to harass women who they perceive to be insufficiently feminine and to bring legal action against any trans-inclusive service providers, all while allowing the EHRC to distance itself from these actions.
While most organisations are unlikely to want to enforce trans exclusion themselves, the anti-trans lobby is not going to accept unenforced segregation, especially given it’s likely that organisations will move towards prioritising gender-neutral services and facilities to save themselves a headache. Much as the Supreme Court ruling was the result of well-funded anti-trans organisations using the courts to effectively rewrite the Equality Act, those same organisations will be looking for opportunities to bring more legal cases to try to force organisations to enforce trans exclusion. While widespread enforcement is fundamentally unworkable, the result of any such legal challenges will mean further attacks on the rights and dignity of trans people if not effectively challenged.
It’s important for us to be aware of how a trans ban is likely to manifest so that we can identify the best ways to counter it. It is also important that we start coalescing the trans liberation movement to be able to effectively fight back. This has started to emerge, with trade unions starting to take trans rights more seriously, with local trans activist groups organising against the attacks against trans people in recent years, with the Trans Liberation Group beginning to build a nation-wide member organisation for trans liberation, with nonprofit organisations like Trans+ Solidarity Alliance and TransActual organising against the EHRC’s Code of Practice. But these efforts are in their infancy, disconnected from each other, or limited in scope. Resisting this latest attack against trans people offers another opportunity to build a more serious force for effectively resisting the current attacks, and going beyond to win real gains for trans liberation.
Resisting workplace enforcement of trans-exclusive policies is likely to be the most straightforward way to resist the new Code of Practice. While the Code of Practice isn’t aimed at employers, it is inevitable that employers will use it to guide their policies. In leaked draft guidance from the Cabinet Office, it appears that trans Civil Servants will be told that they cannot use the facilities that align with their current lived sex, and that using the facilities that align with their birth sex (if they wish to do so) will only be possible “in some circumstances”.
There is an obvious fight to bring to our unions and workplaces: that gender policing and trans segregation is harmful, misogynistic, and unworkable, and that it is not in the interests of workers or organisations to enforce such segregation, regardless of any EHRC guidance. Unions should fight to ensure that workers not be made to attempt to enforce any sort of ‘sex policing’, for the benefit of workers and trans people in workplaces where employers do push for this, as a pre-emptive measure to dissuade employers who might otherwise try to make workers enforce a ban, and as an opportunity push unions to further support trans people more broadly. They should also aim to challenge ‘paper policy’, even if it lacks actual enforcement measures, for the sake of providing an environment where trans people are less likely to self-exclude.
While we should not denigrate those trans people who do self-exclude for the sake of their personal safety, especially given that not all trans people take on the same level of risk with non-compliance, we should do whatever we can to support those who will continue using the single-sex services which align with their current lived sex.
This could take many forms. Resisting trans-exclusive workplace policy is part of this, drawing a line in the sand that trans exclusion is not to be accepted, but this support might also come in the form of: publicly challenging misogynistic witch-hunting of people perceived as being trans, allies accompanying trans people to single-sex facilities where they want support from anyone who might challenge them; naming-and-shaming service providers where trans people are harassed (to provide a counterforce to the legal threats that trans-exclusionary misogynists will threaten to trans-inclusive service providers).
The primary tactic of trans-exclusionary misogynists has been legal threat, and it’s also the area where we are weakest to resist. Unions may be able to eat fines if taken to court, but small service providers or employers may not be willing to risk this sort of legal challenge, even with sustained pressure from workers or the public. We should still push for this (the more organisations that refuse to implement trans segregation, the harder it will be for individual organisations to be singled out for legal challenge), but legal challenge remains a real threat.
There are likely workarounds for this, e.g.: providing ‘single-sex’ services that are technically services provided to a particular sex and all trans people; or nominally ‘single-sex’ services that are technically open to all; or moving away from single-sex services to gender-neutral services. But none of these workarounds are a real solution on their own.
The fundamental legal issue is the Supreme Court ruling that rewrote the Equality Act, which was always intended to be trans-inclusive. The Equality Act was written a full six years after the Gender Recognition Act, which clearly defines sex as an individual’s current lived sex (not simply their assigned sex at birth) and explicitly sets out a legal mechanism for changing sex. This new interpretation of the Equality Act largely nullifies the Gender Recognition Act, and happened without a vote in Parliament. As well as resisting the EHRC’s Code of Practice within the labour movement, we also need to be increasing pressure on MPs to resolve this.
An ‘Early Day Motion’ (EDM 240) calling for the Code of Practice to be disapproved has been tabled by Nadia Whittome, and has received cross-party support from over 50 MPs at time of writing. This alone will not undo the damage of the Supreme Court ruling, and a further push to clarify a trans-inclusive definition of sex in the Equality Act will also be needed, but it serves as a jumping-off point to pressure MPs into standing up for trans people.
With the relentless attacks against trans people in recent years, it is hard to avoid continually fighting on the back foot. While we should absolutely be resisting the attacks we are facing today, we will not be able to reverse the damage without taking control of the narrative and making positive demands. We should demand an end to the anti-trans attacks of recent years:
But also we should demand actual wins for trans liberation:
We should be taking these demands into our unions, pressuring the Labour party and the Greens to fight for them, and at the same time we should be defending trans people against exclusion and harassment: refusing to implement or enforce trans segregation, challenging misogynistic gender policing, and supporting trans people to continue accessing the single-sex spaces they have used, without issue, for decades. And we should be building for an organised trans liberation movement capable of effectively fighting for and winning these demands.