A report by the equality watchdog describing the practical implications of Supreme Court’s decision on the definition of gender in the Equality Act was described as “ill-considered” and “impractical”, with some MPs calling it for its withdrawal.
Following the landmark decision in For Women Scotland V Scottish Ministers, on 16 April. The Equality and Human Rights Commission released an interim update Friday evening (25th April), stating that it was working to update its statutory and un-statutory guidance.
The EHRC stated: “We understand that many people are confused about the verdict and its implications for them. Our updated guidance will give you more clarity. This update, which is still in progress, is meant to highlight the most important consequences of the ruling. “Employers and other duty bearers should follow the law, and seek specialist legal advice when necessary.”
This update describes the ways in which workplaces, sporting organisations, schools, and associations, as well as public services, should adhere to the law, while the commissioners update their guidance during the next two-month period.
The Supreme Court decided before Easter that “sex”, in the Equality Act 2010 means biological sex. According to the act, “woman” means a woman who was born female and a man means a man who was born male. Even if someone has a certificate of gender recognition, if they identify as trans they will not be considered to have changed sex under the act.
According to the EHRC’s update, workplaces must provide enough single-sex restrooms and facilities for changing and washing single-sex clothes, when these facilities are required.
There is no requirement that services available to the public are provided by a single-sex staff or have facilities for single-sex people, such as toilets.
They can be single-sex, if they are a “proportionate way to achieve a legitimate goal” and meet the other conditions of the Act. If the only provision in the Act is mixed-sex then it may be indirect discrimination against women.
In workplaces and public services, trans women (biological males) “shouldn’t be allowed” to use women’s restrooms, and trans men should not be allowed to use men’s restrooms, because “this would mean that these facilities are no longer sole-sex and open to users of opposite sex.”
‘Reasonable objection’
It also states that, “in certain circumstances”, the law allows trans women to “not be allowed” to use men’s restrooms, and trans men to “not be permitted” to utilize women’s restrooms.
The judgment states in paragraph 221: “This could be considered proportionate when reasonable objections are taken to their appearance, for example because the gender reassignment has given them a male appearance or attributes that reasonable objections might be taken to in the context the women-only services being provided.”
According to the EHRC’s update, where facilities are provided for both men and woman, transgender people should not be left without facilities. If possible, facilities for mixed-sex toilets, changing rooms, or washing facilities should be available in addition to the single-sex ones.
If the facilities are located in a room that can be locked (not a cubicle), and they’re intended to be used only by one person, either men or women can use them.
Akua Reindorf KC (EHRC Commissioner) said on BBC Radio 4’s PM program, Saturday: “It’s not true that this guidance – well, it’s actually an update, but it isn’t the case that the update or judgment forces trans people to opposite-sex facilities if organizations operate in a manner that considers the dignity and safety for everyone who is affected.
There may be instances where a woman who is a genetic trans woman ‘passes as’ a man. He may have masculinised so much that he resembles a real man. In these cases, the person may not be allowed to use women’s facilities despite her being a woman. “I want to make it clear that this will be determined on a case-by-case basis; the response will depend on the situation on the ground.”
Ill-thought-out
Carla Denyer, co-leader of the Green Party, told BBC’s Sunday With Laura Kuenssberg, that the interim “guidance” puts trans people at a risk of discrimination. Sir Ed Davey said the Liberal Democrats’ leader had questions about how the guidance would be enforced.
Denyer stated: “The EHRC guidelines seem to say that if a Lesbian Association or Venue wants to be inclusive and wants to include Trans Women – and remember that lesbians, non-transwomen are among the most supportive trans people are the entire society. So quite a number of lesbians and LGBT organizations are going to want include trans people. The advice seems to state that they will not be allowed to.
The Greens want the guidelines withdrawn. The guidance is clearly rushed, ill-thought out and hasn’t been consulted with all those who will be affected. “We’re saying to withdraw it. Think again. Consult everyone who will be affected by the guidance, and then come up with something more thoughtful.”
Davey, in a conversation with Kuenssberg said that the topic needs to be “properly, thoughtfully discussed” and should be more debated in Parliament. He gave an example of a biological woman (trans man) using the female toilets. This could be a source of anxiety. “Would this mean that a male could enter a female’s bathroom and say, Oh, I am a trans woman?’?” This would make many people even more worried. It’s confusing.”
Pat McFadden said that the “logical conclusion” of the Supreme Court decision and EHRC guidelines was that people “use the facilities of their own biological sex”.
When asked if the government will ban transgender people from using the toilets in their buildings that they want to use, he replied to the BBC, “In reality, do you think I’ll be standing outside the toilets when you say, ‘ban?’ I probably won’t. “There won’t be toilet police. But that is the logical result of the court decision and the EHRC guidelines.”
The EHRC has said that its updated guidance will soon be available. We are working quickly to incorporate the Supreme Court’s decision. The updated Code of Practice will be submitted to the UK Government for approval by ministers at the end of the month.
The government said it was currently updating sections of the draft Code of Practice and that a public consultation will be held in mid-May for two weeks to solicit views from stakeholders.
The Supreme Court has already made its legal position very clear. We will not seek views on these legal aspects.
A spokesperson for the EHRC stated today: “As Britain’s equality regulator, our job is to enforce and uphold this country’s equality laws. This includes explaining the practical consequences of the recent ruling regarding the definition of gender in the Equality Act 2010
The law, as outlined in the Supreme Court’s readable judgement and effective immediately. Employers, service provider and other parties with duties under Equality Act should follow the law. They may also seek specialist legal advice if necessary.
We know that many people are still unsure about the implications of the ruling and what they mean for them. That is why we released this interim statement. Our accurate and authoritative update will help duty-bearers put into practice the legal clarity provided to them by the Supreme Court.
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