Transgender people face ban from single-sex spaces based on appearance

Transgender people could be banned from single-sex spaces based on appearance, under equalities guidance.

NHS trusts, councils and businesses have continued to allow trans women to use female-only facilities despite the Supreme Court ruling in April, which ruled that sex under the Equality Act is defined by biology – not gender identity – and that laws against sex-based discrimination should apply only to biological women.

Since then service providers have been left in limbo as they wait for updated guidance from the Equality and Human Rights Commission (EHRC) to be published before introducing any changes in public venues.

The new proposed code of practice will be used by businesses and other organisations to inform their provision of single and separate-sex services such as toilets and changing rooms.

The watchdog submitted the amended 300-page document to Bridget Phillipson, the minister for women and equalities, in early September, prompting critics to accuse Labour of delaying publication to avoid fracturing the party again.

However, pressure is now mounting on the minister “to get on and lay the new guidance before Parliament” after details of its contents emerged on Wednesday night.

The watchdog’s new guidance, leaked to The Times, said transgender people could be banned from single-sex spaces based on appearance.

Places such as hospital wards, gyms and leisure centres would be able to question transgender women over their use of single-sex services based on how they look, their behaviour or concerns raised by others.

On sport, it is also said to state trans people should not be included in single-sex or separate-sex competitions on the basis of the sex they identify with.

And where it was previously mooted that those running services could ask to see a birth certificate or gender recognition certificate (GRC), the final code of practice is said to advise that it would be “unlikely [to] be proportionate or practical to ask for further evidence of a person’s sex” even if doubts were raised.

The code reportedly notes that “there is no type of official record or document in the UK which provides reliable evidence of sex” because people are able to change their sex on passports and driving licences without a GRC.

Instead, where there is “genuine concern about the accuracy of the response”, the code reportedly states it may be proportionate to exclude a transgender person.

The code is also said to acknowledge that a transgender person could be barred from single-sex spaces even when their biological sex matches. For instance, a trans man who was biologically female could be banned from using a women’s changing room if they appear male.

Single-sex spaces ‘legitimate’
The EHRC document also describes the provision of single-sex spaces for “ensuring the safety of women or the privacy and dignity of women and/or men” as a “legitimate aim”.

Organisations are encouraged to consider whether there is a suitable alternative for those excluded, but the guidance reportedly notes that in some cases this may not be possible owing to physical constraints of a building or financial costs.

Following ministerial approval, the revised code must be laid before Parliament for 40 days before it can be brought into force.

The guidance, which was last updated in 2011, provides practical advice on how to implement the law and applies to any organisation that provides services to the public, including shops, gyms, prisons, cinemas, restaurants, hospitals and hotels.

The advice also extends to private organisations or charities that provide a public service.

‘Common sense’ guidance
Maya Forstater, chief executive of the gender-critical campaign group, Sex Matters, said: “This seems to be common sense guidance from the EHRC, which brings the statutory Code of Conduct back into line with the law and will help businesses stand up to activist demands.

“Service providers can be confident that if they provide the usual range of facilities for men, women and disabled people, they are already operating within the law.

“Providers of specialist services such as women’s refuges, men and women’s mental health wards, and sports can be confident that offering single or separate-sex services is lawful, and not difficult.”

She said the guidance “makes it clear” it is “legitimate” for service providers to ask people their sex.

She added: “People can be challenged if they appear to be in the wrong place. As the EHRC makes clear, this is not a matter of what clothes they are wearing, but whether they look and sound like someone with a male or female body. We look forward to reading the guidance in full.”

Phillipson ‘taking the time’ to get it right
In response to criticism, Ms Phillipson said she is “thoroughly and carefully” considering guidance from a watchdog that suggested transgender people could be banned from single-sex spaces based on how they look.

The EHRC wrote to Ms Phillipson, who is also the Education Secretary, last month urging her to hurry up with bringing in the new guidance, warning some organisations are currently using unlawful practices.

It said the 2011 code is currently unlawful but some organisations are continuing to use it in the absence of a revised code.

The watchdog said its updated code handed to ministers “accurately reflects the law and is informed by the two public consultations we ran to ensure it is as clear as possible”.

Asked about the code on Thursday, Ms Phillipson 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.”

‘We want to avoid the policing of toilets’
Josh MacAlister, the children’s minister, denied the Government is refusing to publish the guidance, said to run to some 300 pages, because it hopes the problem will go away.

He told Times Radio it is a “really hard issue to resolve between lots of different, competing views”, as he outlined potential practical difficulties and said he wants to avoid the policing of toilets.

He said: “I just ask people to imagine small corridors where you’ve got a set-up 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.

“We want to avoid being in a position where toilets are being policed by people.”

The EHRC has been contacted for comment.

A Government spokesman said: “The EHRC has submitted a draft code of practice to ministers, and we are working quickly to review it with the care it deserves.

“We have always been clear that the proper process needs to be followed and we are following it.”

‘Attack on rights’
Responding to the leaked reports, Momentum, the political movement closely associated with Jeremy Corbyn, the former Labour leader, said: “The EHRC’s draft guidance is an exclusionary attack on the rights of trans people to engage in public life. We urge all Labour MPs to tell ministers that the guidance as it stands is unacceptable.”

Some Labour MPs called on Ms Phillipson to release details of the guidance, warwning that it could end up discriminating against women.

Charlotte Nichols, Labour MP for Warrington North, said that when she was younger and had a pixie haircut she would frequently be mis-gendered and called “Sir”.

She said: “I don’t want to have to wear make-up to go out all the time and have to be dressed in a certain way… I have not had anyone accuse me of not having been born a woman for a while, but I did used to get it when I was younger when I had short hair cut.”

Ms Nichols added that banning people from single-sex spaces based on appearance could also cause unintended consequences for those going through chemotherapy treatment, or who have less hair for other reasons.

She added: “And you don’t want to be in a situation [of] having to look a certain way to use the toilet in your local cafe”.

‘The EHRC is seeking to legitimise stereotypes’
Writing on X, Stella Creasy, Labour MP for Walthamstow, said: “If this is true it means the culmination of this process is now a proposal to reinforce gender stereotypes, with those who don’t fit them having to justify themselves regardless of their biological sex.

“Thus, the EHRC itself now seeking to legitimise stereotypes rather than tackle them.”

Dr Rosena Allin-Khan, Labour MP for Tooting, said: “Today is Transgender Day of Remembrance, a time to remember all those who have been victims of vile hatred and transphobia. With the recent Supreme Court ruling and concerns over upcoming EHRC advice, now is the time to double down on our support for our trans community.”

One Labour MP, speaking on condition of anonymity, said that if the minister published the controversial EHRC guidance, there might not be a backlash from MPs because “most people are so scared to talk about it”.

The MP added: “It’s a really polarising thing and you never know what some people’s views are going to be on it.”

However, one Labour MP, and ally of the equalities minister, speaking off the record said: “It is abundantly clear that the EHRC have stepped beyond what is appropriate for a government regulator in continuing their campaign past the point which they have done their job which is to submit the briefing to the minister.”