The Equalities and Human Rights Commission (EHRC) has produced a draft Code of Practice to the Equality Act that - if implemented - will have a devastating impact on the day to day lives of trans+ people in the UK, excluding them from settings ranging from specialist support services to gym changing rooms and toilets.

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We need parliamentarians to step up and speak out NOW to prevent this draft guidance becoming law.

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The goal of the Unite for Trans Rights mass lobby is to show the depth and breadth of support for protecting trans+ rights in the UK, educate our lawmakers, and call on them to take concrete steps to prevent trans+ people’s lives being made less free and less safe.

 

A mass lobby is when a group of people contact their MP or contact members of the House of Lords and arrange to meet them in parliament on the same day and at the same time. It’s a great way of making it clear to parliamentarians that their constituents (or in the case of the House of Lords, UK residents) are passionate about an issue, and is an effective way of encouraging them to take action.

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Remember to talk about your own experiences, thoughts and feelings, and the experiences, thoughts, and feelings of the people you know.  You are speaking to your MP as a constituent, and it is personal stories like yours – not technical legal analysis - that is most likely to make them take action.

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Key Points at a glance:

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The EHRC’s Draft Code of Practice:

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• Will introduce a UK wide ‘bathroom ban’ excluding trans+ people from toilets and changing rooms, and exposing both trans+ and cis people to distressing invasions of privacy
   

• Will force vital services and much needed community groups to exclude trans+ people
   

• Will expose businesses, services and community groups to a high risk of complaints and litigation, whatever they choose to do.

 

​We want MPs to take the following actions NOW:
 

Contact Equalities Minister Bridget Philipson, and PM Keir Starmer and ask them to promise that:

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• No new Code of Practice to the Equality Act will be laid before Parliament without a process in place for full parliamentary scrutiny. 
   

• The government will not support changes to the Equality Act or its Code of Practice that reduce or limit the rights and protections afforded to trans people or reduce trans+ people’s access to vital services and facilities.
   

Tell them that we want them to:
 

• Ask parliamentary questions focused on protecting trans+ people’s rights and defending trans+ people’s abilities to live safe and dignified lives.
   

• Speak up in debates in defence of trans+ people’s rights.
   

• Meet regularly with trans+ constituents to understand the lived experience of the community.

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What is the Equality Act?

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The Equality Act 2010 is the most important anti-discrimination law we have in the UK. It outlaws discrimination based on ‘protected characteristics’: age, disability, ‘gender reassignment’ (being trans+), marriage / civil partnership, pregnancy and maternity, race, religion or belief, and sex.  It protects us from discrimination in work, and from discrimination in public and private services as well as ‘associations’ (any group with more than 25 members).
 

The Code of Practice to the Equality Act is a statutory code of practice (a type of law) that sets out how the Act should be implemented. Responsibility for drafting the Code of Practice for the Equality Act belongs to the Equality and Human Rights Commission.
 

For Women Scotland v Scottish Ministers
 

On 16th April this year the Supreme Court issued a judgement in For Women Scotland v Scottish Ministers.
 

This case was originally about representation on public boards in Scotland, specifically whether trans+ women should be considered women in the context of the Gender Representation on Public Boards (Scotland) Act.  This is an act that has the goal of ensuring that 50% of all non-executive seats on Scottish public boards are held by women.
 

To decide the case, the question the Supreme Court was asked to consider was whether the protected characteristic of ‘sex’ in the Equality Act means only sex assigned at birth, or whether it also includes sex as recognised by a Gender Recognition Certificate. 

The Supreme Court held that for the purposes of the Equality Act, ‘sex,’ and the terms ‘man’ and ‘woman’ means only sex assigned at birth.
 

The full implications of the judgement are not clear.  For example, former Supreme Court Justice Lord Sumption has publicly stated that the judgment is ‘widely misunderstood’ and that there is ‘no obligation to exclude’.
 

For an overview of the case see this article by  Jess O’Thomson here: https://www.prospectmagazine.co.uk/ideas/identity/equality/69803/supreme-court-judgment-sex-trans-rights
 

For critical legal analysis of the Supreme Court judgment see this article by Crash Wigley here: https://www.translegalproject.org/post/for-women-scotland-a-legal-critique

 

The EHRC ‘Interim Update’ and public statements from EHRC leadership

 

In the wake of the Supreme Court judgement being issued, the EHRC rapidly published an

‘Interim Update’ on April 25th.  This ‘update’ extended the scope of the Supreme Court ruling to explicitly cover day to day settings such as toilets and changing rooms.
 

The ‘Interim Update’ has no legal force, but it states that trans+ women should not be allowed to use women’s toilets and changing rooms and that trans+ men should not be allowed to use men’s toilets and changing rooms.  It says that ‘in some circumstances the law also allows trans+ people to be excluded from all gendered toilets and changing rooms,’ while noting that ‘trans people should not be put in a position where there are no facilities for them to use’.
 

This aligns with public statements by the EHRC Chair and Commissioners in the wake of the Supreme Court Judgement. For example, just days after the ruling, the Chair, Baroness Falkner said on the Today Programme that the EHRC would ‘pursue’ the NHS to ensure it changed its policies on single sex healthcare.  More recently, Commissioner Akua Reindorf, speaking at a public event, stated that trans+ people will ‘have to accept a period of correction’, saying ‘the correction of self-ID policies and practices will inevitably feel like a loss of rights for trans people’.

 

Consultation on the Draft Code of Practice
 

On the 20th of May, the EHRC opened a consultation on proposed changes to the Code of Practice to the Equality Act.  This consultation runs until the 30th of June (except for responses that are submitted in Welsh).
 

The consultation documents are long, complex and have been written in a way that makes it very difficult for respondents to challenge the reasoning that underpins the proposed changes.

 

The proposed changes are profound.
 

Under the draft code of practice, no single sex service or association could operate on a trans+ inclusive basis.  This would apply to everything from a women’s hiking group or men’s meditation class to a domestic abuse service or a hospital ward.  Trans+ exclusion would become the legally mandated norm, and access to vital services will be decimated.
 

Prior to the Supreme Court judgment, single sex services and associations could operate on a trans+ inclusive basis or could choose to exclude trans+ people where this could be justified as a ‘proportionate means of achieving a legitimate aim’.
 

Under the draft code of practice, no single sex toilets or facilities could operate on a trans+ inclusive basis.  This is a national bathroom ban.  It means that trans+ people could be left without any toilets or facilities that they can use, unless the building they are in happens to have unisex toilets or changing rooms.  Studies from the US have shown that bathroom bans significantly increase risk of harm to trans+ people.
 

Under the draft code of practice, it is proposed that services and associations question people about their sex, including asking them to provide birth certificates, or other (unspecified) evidence of their sex assigned at birth.  This means that both trans+ and cis people are likely to experience intrusive and distressing interactions in their day to day lives, potentially in violation of their right to privacy.
 

You can learn more about the consultation and how to respond from TransActual here:

https://transactual.org.uk/equality-act-campaign/responding-to-the-ehrc-consultation/

 

What happens next?

Once the consultation closes on the 30th of June the EHRC will analyse responses, make any changes they feel are necessary and then submit the new Code of Practice for review by the Government. The Government will review the legality of the guidance, and assuming it considers the guidance lawful, will publish it in Parliament (called being ‘laid’). Once laid, there is no requirement to scrutinise or debate the Code of Practice, and without intervention it will simply pass into law after a specified period of time.
 

This process may move quickly. Baroness Falkner, Chair of EHRC recently told the Women and Equalities Select Committee that the EHRC intended to pass the draft Code of Practice to the Government for review by summer recess, which begins on the 22nd of July.

 

What are we asking MPs to do?

We want MPs to take the following actions NOW:
 

Contact Equalities Minister Bridget Philipson, and PM Keir Starmer and ask them to promise that:
 

• No new Code of Practice to the Equality Act will be laid before Parliament without a process in place for full parliamentary scrutiny
   

• The government will not support changes to the Equality Act or its Code of Practice that reduce or limit the rights and protections afforded to trans people or reduce trans+ people’s access to vital services and facilities.
   

And we want them to:
 

• Ask parliamentary questions focused on protecting trans+ people’s rights and defending trans+ people’s ability to live safe and dignified lives.
   

• Speak up in debates in defence of trans+ people’s rights.
   

• Meet regularly with trans+ constituents to understand the lived experience of the community.

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Q&A

The EHRC is ‘just’ implementing the Supreme Court judgement

The judgement is complex, and the practical implications of the judgement are not yet clear. 

Many lawyers and judges, including former Supreme Court justices, have expressed very different interpretations of this case. Rather than reflect and consider carefully, the EHRC has made the choice to rush through changes that will have a devastating impact on trans+ people’s ability to live their lives in a safe and dignified way. 

What about women’s right to have safety, privacy, and dignity?

There is nothing unsafe or undignified about cis and trans+ women sharing spaces and services. Some cis women would prefer not to share spaces and services with trans+ women, others are happy to share spaces and services with trans+ women.
 

Before For Women Scotland, single sex spaces could and did operate on a trans+ exclusionary basis where it was a ‘proportionate means of achieving a legitimate aim’.  We should not be excluding anyone in circumstances that are disproportionate or illegitimate.

Can’t trans+ people just use unisex services / facilities?

In many cases unisex services and facilities simply do not exist. For example, being excluded from women’s domestic abuse services will vastly reduce trans+ women’s ability to access services and support that keeps them safe from harm. Many small workplaces, cafes and pubs do not have any unisex facilities, or any accessible facilities.

Where they do exist, it is not right that trans+ people should be forced to use unisex services and facilities, or to use accessible facilities, limiting much needed access for disabled people.