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 they 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 transexclusionary misogynists the tools to wage further lawfare against service providers that want to remain transinclusive, 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 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, as well as 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 CHANGED?
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 as 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 about 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 it). It 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… describes this new Code of Practice as a ‘win for sex-based rights’, this is what they are referring to.
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: for example, a ‘women-only’ service would open itself up to legal challenge from trans 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 singlesex service that excludes trans people who would ordinarily use it (for example, trans women excluded from women-only services). Under the EHRC’s interpretation, the previous understanding of the Equality Act meant that a ‘single-sex’ women’s service could face legal challenge from trans women excluded from the service, or from cis men excluded if the service admitted trans men. When anyone describes this new Code of Practice as a 'win for sex-based rights', this is what they are referring to.
This change effectively abolishes women only and men-only spaces. A women-only service could previously include trans women and 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 – leaving trans men at real risk of being denied access to any single-sex service, with no attempt to explain when such exclusion would be considered 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.
WHAT DOES THIS MEAN FOR ORGANISATIONS?
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 used for as long as such spaces have existed will not make it so. What it does do is legally threaten any service provider that wants to provide trans-inclusive single-sex services. A service provider may still offer a service to, for example, cis women and all trans people, but would no longer be legally protected if providing a service for cis and trans women only.
Legal threats have been a core tactic 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. 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 defend themselves in court. What this new Code of Practice does is make those claims much less spurious, increasing the likelihood that organisations that try to challenge such claims will lose.
WHAT DOES THIS MEAN FOR INDIVIDUALS?
The Code of Practice is aimed at organisations. It does not put trans people at legal risk for using single-sex services that align with their gender or current sex. Instead, 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.
WHAT COMES NEXT?
It’s worth looking beyond what the Code of Practice says on paper to consider the actual impact it will have if ratified by Parliament. The obvious and immediate consequence will be banning trans people from single-sex spaces, but it will also have a wider impact. Employers, who were already less likely to hire trans people, will be incentivised to avoid hiring trans workers to avoid legal hassle. Disabled people will also be affected, as disabled facilities may be the only gender-neutral ones available to trans people now excluded from single-sex spaces. The Code 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 pushing trans people out of public life – and, ultimately, out of society altogether.
Given that the headline impact from this new Code of Practice is the effective segregation of trans people from public spaces, it is telling that the Code goes out of its way to state 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: through self-exclusion, direct enforcement, indirect enforcement, and legal challenge.
SELF-EXCLUSION
Perhaps the most common way this ban of trans people in single-sex services will be enforced is through trans people themselves. In an environment where antitrans rhetoric, harassment, and violence are escalating, some trans people will avoid using single-sex services to avoid the risk of potential harassment. This already happens: trans people sometimes avoid using public bathrooms, seeking healthcare, or being involved in sports groups for fear of the harassment they might receive as a result. The EHRC’s new Code of Practice will make this even more commonplace.
The EHRC is likely relying on this as a key mechanism of 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.
DIRECT ENFORCEMENT
Some organisations that want to exclude or segregate trans people from their services will use this Code of Practice as an opportunity to do so. 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.
INDIRECT ENFORCEMENT
Most organisations are unlikely to make much of an attempt to enforce any sort of trans ban or segregation policy, although in many cases this will be because of the cost (both material and reputational) rather than any strong political opposition. What is much more likely is that individual bigots will be emboldened to harass anyone 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. If the EHRC’s Code of Practice is ratified, this is likely to get worse.
This gender vigilantism is already being encouraged by some 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 one 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 is to exclude trans people from single-sex spaces, the EHRC avoids outright telling service providers to start banning any woman who doesn’t look sufficiently feminine from women-only spaces. This would be too 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, transexclusionary misogynists will feel emboldened 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.
LEGAL CHALLENGE
While most organisations will be reluctant 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 antitrans 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.
HOW CAN WE FIGHT BACK?
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 on trans people in recent years, with the Trans Liberation Group beginning to build a nationwide member organisation for trans liberation, and with nonprofit organisations such as 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 POLICY
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 are not 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.
This acts as a pre-emptive measure to dissuade employers who might otherwise try to make workers enforce a ban, and as an opportunity to 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.
DEFENDING TRANS PEOPLE
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. Nonetheless, we should do whatever we can to support those who will continue using the singlesex 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 trans; allies accompanying trans people to single-sex facilities when they want support in case they are challenged; and naming-and-shaming service providers where trans people are harassed, to provide a counterforce to the legal threats that trans-exclusionary misogynists will direct at trans-inclusive service providers.
RESTORING THE EQUALITY ACT
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 beat 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, for example: 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 even a vote in Parliament. As well as resisting the EHRC’s Code of Practice within the labour movement, we also need to increase 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 MP, and has received cross-party support from more than 110 MPs at time of writing. This alone will not undo the damage of the Supreme Court ruling, and a further push to clarify a transinclusive 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.
GOING BEYOND REACTION
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 resist 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:
• Support EDM 240 and scrap the EHRC Code of Practice.
• Amend the Equality Act to undo the damage caused by the Supreme Court ruling.
• End the discriminatory puberty blocker ban.
• Institute a complete ban on all types of conversion therapy, including trans conversion therapy.
But we should also demand actual gains for trans liberation:
• Enshrine the right to self-identification of gender, including non-binary gender, for all purposes.
• Replace the EHRC with an equalities body that actually protects human rights.
• Make sex education in schools queer and trans-inclusive.
• Desegregate trans healthcare, and significantly improve healthcare provision, with bodily autonomy for all.
We should take these demands into our unions, pressuring the Labour party and the Greens to fight for them. At the same time we should defend 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 singlesex spaces they have used, without issue, for decades. And we should build for an organised trans liberation movement capable of effectively fighting for and winning these demands.
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