A new code of practice has said that organisations offering single-sex services and spaces must exclude Trans people from them, or no longer label them as ‘single-sex’.
The Equality and Human Rights Commission, the UK’s equality watchdog, laid the Code of Practice before Parliament this Thursday, May 21st. It sets out that single-sex spaces, from toilets to changing rooms, must be served on the basis of what it calls ‘biological sex’, based on people’s sex assigned at birth. It will come into practice after 40 days, if it is not opposed.
This guidance follows the Supreme Court’s ruling last year that the word “sex” in the Equality Act 2010 refers solely to “biological sex” within the act.
The code makes it clear that this is the case even if someone has a Gender Recognition Certificate that changes their legal sex. It sets out that this should now be considered their ‘certified sex’, instead of their ‘biological sex’, and that single-sex provisions must be delivered in accordance with ‘biological sex’.
Gender critical groups have welcomed the guidance, in particular its claim to codify sex as a binary, despite biology showing that sex has many variations – Scientific American
What does the new Code of Practice say?
This guidance addresses the application of the Equality Act, which impacts associations, organisations, healthcare and businesses but not other areas like workplaces and schools. However, other guidance, including from the Department for Education, mirrors the code for provision in schools, suggesting its influence extends beyond its stated remit.
It generally recommends establishing ‘third spaces’ for Trans individuals. While single-sex services should be used based on ‘biological sex’, the guidance acknowledges that if Trans people are perceived as another gender, it might be proportionate to deny them access to these services as well.
For instance, it provides an example where a trans man, perceived as a man, could be denied entry to women’s toilets despite being assigned female at birth. This is justified as a “proportionate means of achieving a legitimate aim” because “other service users could reasonably object to his presence”.
In healthcare settings, the guidance highlights a potential loophole. Organisations may opt out of providing trans-inclusive, mixed-sex services by stating it might be proportionate not to offer them in “a small number of circumstances where mixed-sex accommodation may be acceptable”.
However, the guidance also clarifies that Trans individuals may be able to bring discrimination claims when services are not provided, as this creates an unfair disadvantage. It affirms that failing to provide services for Trans people constitutes discrimination based on gender reassignment.
Despite this, almost all examples provided suggest creating ‘third spaces’. Jess O’Thomson, trans rights lead at the Good Law Project, criticises this approach, stating it “treats trans people as a third sex and suggests they should be made to use separate spaces – entirely ignoring the harm this causes and human rights law”.
What didn’t make it into the Code?
Several harmful rules in previous drafts of the code that were leaked to the right-wing press have been removed, including suggestions of ‘checking birth certificates’. Critically, the final version does not force the exclusion of Trans people.
It also sets out that offering only single-sex spaces indirectly discriminates against Trans people, and therefore does not force organisations to segregate Trans people in all instances; rather, in most examples it recommends this to ensure there are cisgender ‘women only’ spaces.
Conclusion
While this guidance isn’t as dire as it could have been, it’s horrific news for the Trans community and the entire LGBTQIA community. They’re scared, angry and fearful about its potential consequences.
The Trans Solidarity Alliance believes this code will become Labour’s legacy, much like Section 28 did for the Conservatives. Trans Actual warns it will impact everyone in the LGBTQIA community.
This code will give anyone the green light to further restrict what men and women should look like, leading to increasingly polarised gender policing in bathrooms, changing rooms and other spaces nationwide.
This should be a wake-up call for queer people of all kinds, including gay men. Regardless of our appearance or behaviour, the rhetoric of those who hate us claims we’re not man enough simply because we love other men. This code further legitimises this outdated belief.
Although it’s been presented to Parliament and has 40 days to be opposed, it faces a high parliamentary hurdle to prevent it from becoming law. This means the fight will likely extend beyond the legal arena to the local level.
Ultimately, being Trans inclusive remains legal, a victory that empowers us to fight back. We should advocate with local businesses, associations and organisations to declare their commitment to Trans inclusive services.
It’s up to us and our allies to make this the norm, ensuring gender-critical approaches are the outliers. We must continue protesting and finding inherently queer ways to oppose attempts to make transphobia the norm – a culture we all reject.
This is the first time I’ve heard it proven absolutely that no one truly has rights; we merely possess privileges. These privileges are subject to removal at the discretion of whoever holds power. Trans people haven’t done anything wrong, yet we are all being stripped of our hard-won rights. It can and will happen to others.
This will be adopted by a party that said they champion transgender dignity. They also repealed Section 28 and this feels more like a revised version specifically targeting transgender people rather than the entire LGBT community. This was the party that made the Equality Act 2010 into law.
Why does it feel like we have gone back in time, back to when the Americans had racial segregation. This is what this so called guidance feels like for the Trans community in the UK now.
This Government Has Abandoned Us
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