An interim update by the equality watchdog on the practical implications of the Supreme Court’s ruling on the definition of sex in the Equality Act has been described as ‘ill-considered and impractical’, with some MPs calling for it to be withdrawn.
The Equality and Human Rights Commission published an interim update on Friday evening (25 April) following the landmark judgment in For Women Scotland v Scottish Ministers on 16 April, saying it is working to update both its statutory and non-statutory guidance.
The EHRC said: “We know that many people have questions about the judgment and what it means for them. Our updated guidance will provide further clarity. While this work is ongoing, this update is intended to highlight the main consequences of the judgment. Employers and other duty-bearers must follow the law and should take appropriate specialist legal advice where necessary.”
Its update describes how workplaces, public services, sporting bodies, schools and associations should comply with the law while commissioners update their guidance over the next two months.
Before Easter, the Supreme Court ruled that in the Equality Act 2010, “sex” means biological sex. This means that under the act, a “woman” is a biological woman (born female) and a man is a biological man or (born male). If somebody identifies as trans, they do not change sex for the purposes of the act, even if they have a gender recognition certificate.
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The EHRC update outlines that, in workplaces, it is compulsory to provide sufficient single-sex toilets and single-sex changing and washing facilities, where these facilities are needed.
It is not compulsory for services open to the public to be provided on a single-sex basis or to have single-sex facilities such as toilets.
These can be single-sex if it is a “proportionate means of achieving a legitimate aim” and they meet other conditions in the Act. However, if the only provision is mixed-sex, it could be indirect sex discrimination against women.
The update outlines that, in workplaces and services open to the public trans women (biological men) “should not be permitted” to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as “this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex”.
‘Reasonable objection’
However, it also says that “in some circumstances” the law also allows trans women (biological men) “not to be permitted” to use the men’s facilities, and trans men (biological women) not to be permitted to use the women’s facilities.
This stems from paragraph 221 in the judgment, which says: “This might be considered proportionate where reasonable objection is taken to their presence, for example, because the gender reassignment process has given them a masculine appearance or attributes to which reasonable objection might be taken in the context of the women-only service being provided.”
The EHRC update adds that where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use. Where possible, mixed-sex toilet, washing or changing facilities, in addition to sufficient single-sex facilities, should be provided.
Where facilities are in lockable rooms (not cubicles), intended for the use of one person at a time, they can be used by either women or men.
Speaking to BBC Radio 4’s PM programme on Saturday, Akua Reindorf KC, an EHRC commissioner, said: “It is not the case, that this guidance – well it’s not guidance, it’s an update – but it’s not the case that either the update or the judgment forces trans people into opposite-sex facilities, if organisations operate in a way that takes into account the dignity and safety of everybody who is affected.
“There may be situations in which a trans person – let’s say a trans man (that’s a biological woman) – ‘passes’ as a man, has masculinised to the extent that he looks very much like a biological man, there may be circumstances in which that person can be excluded from women’s facilities, despite being a biological woman. And I want to be completely clear that that is going to be case by case; it will have to be a proportionate response depending on the circumstances on the ground.”
Ill-thought-out
Green Party co-leader Carla Denyer told the BBC’s Sunday with Laura Kuenssberg that the interim ‘guidance’ puts trans people at risk of discrimination, while Sir Ed Davey, leader of the Liberal Democrats, said there were questions over how it would be enforced.
Denyer said: “The EHRC guidance seems to be saying that if a lesbian association or venue wants to be inclusive, wants to include trans women – and let’s bear in mind that lesbian, non-trans women are amongst the most supportive of trans people in the whole of society, so quite a lot of lesbian and LGBT organisations are going to want to include trans people – the advice seems to say that they won’t be allowed to.
“The Greens are calling for the guidance to be withdrawn. It’s clearly rushed and ill-thought-out, and they haven’t consulted all the people who’ll be affected. We’re saying withdraw it, think again, consult everyone who’ll be affected by this guidance and then come out with something more thought out.”
Speaking to Kuenssberg, Davey said the issue needs “proper, thoughtful discussion” and that the issue should be debated more in parliament. He gave the example of a trans man (biological woman) entering female toilets, which could cause some anxiety. “Would that mean that a man could go into a woman’s toilet and say, ‘Oh, I’m a trans man’? That would cause even more worries for lots of people. It’s very confusing.”
Chancellor of the Duchy of Lancaster, Pat McFadden, said the “logical consequence” of the Supreme Court ruling and EHRC guidance was that “people use the facilities of their biological sex”.
Asked if the government would ban trans people from using toilets they wish to use in its buildings, he told the BBC: “In reality, when you say ‘ban’, am I going to be standing outside toilets? I’m probably not. There isn’t going to be toilet police, but that is the logical consequence of the court ruling and the EHRC guidance.”
The EHRC said its updated guidance will be available in due course. “We are working at pace to incorporate the implications of the Supreme Court’s judgment. We aim to provide the updated Code of Practice to the UK Government by the end of June for ministerial approval.”
It added that it is currently reviewing sections of the draft Code of Practice that need updating and will launch a two-week public consultation in mid-May, seeking views from affected stakeholders.
“We will shortly undertake a public consultation to understand how the practical implications of this judgment may be best reflected in the updated guidance,” it said, adding, “The Supreme Court made the legal position clear, so we will not be seeking views on those legal aspects.”
Today, a spokesperson for the EHRC said: “As Britain’s equality regulator, it is our job to uphold and enforce this country’s equality laws. That includes explaining the practical implications of the recent ruling on the definition of sex in the Equality Act 2010.
“The law is as set out in the Supreme Court’s very readable judgment and is effective immediately. Employers, service providers and others with duties under the Equality Act must follow the law and should take appropriate specialist legal advice where necessary.
“But we know many people have questions about the consequences of the judgment and what it means for them, which is why we issued this in the interim. Duty-bearers are reassured that our accurate and authoritative update is there to help them put the legal clarity provided by the Supreme Court into practice.”
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