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But the draft code includes a new section on asking about sex (towards the end of Chapter 13) that is wrong about the law. This section should never have been laid before Parliament and it should be disregarded. We will be writing to the Minister for Women and Equalities, Bridget Phillipson, and to the chair of the EHRC, Mary-Ann Stephenson, calling for this section to be withdrawn. 

It appears to have been added at the last minute following feedback from the government Office for Equality and Opportunity (OEO) insisting that there are “limited circumstances in which it may be legitimate for service providers to ask about a service user’s sex” and stressing the importance of training staff on the relevant procedures and protocols. 

In an “additional impact assessment”, the OEO expressed particular concern that asking people what sex they are will result in “involuntary disclosure” that they are trans. This perspective can be understood only through the lens of transactivism, which imagines that people recognise others as men or women based on “gender identity”, while a person’s sex is deeply private. It says:

“New guidance explains how service providers can request information about an individual’s sex at birth. This may force trans people to “out” themselves in public or professional settings. Similarly trans people have expressed concern – as in the Good Law Project litigation against EHRC – that having to use disabled toilets will ‘out’ them.”

This directly contradicts both reality and the Supreme Court’s clear interpretation of the law. The Supreme Court recognised that knowing whether someone is male or female is generally straightforward, while “there is no obvious outward means of distinguishing between a person with the protected characteristic of gender reassignment who has a GRC and a person with that characteristic who does not”, or indeed between a person with the protected characteristic of gender reassignment and any other member of their sex, since this protected characteristic does not “require any physiological change or even any change in outward appearance”.

The new guidance claims that information on sex is, or should be treated as, “special category” data: 

“13.175 Information about sex is sensitive and should be treated as special category personal data.” 

and

“13.182 Information about sex is likely to constitute special category data for the purposes of the Data Protection Act 2018 (DPA) and UK General Data Protection Regulations (GDPR).”

Special-category data is personal data that attracts extra protection in law. It includes information on individuals’ health, philosophical beliefs, sex life and sexual orientation. It is covered under Article 9 of the UK GDPR. The idea that sex is special-category data has been advanced by the Good Law Project. (See our previous blogpost about sport and special-category data.)

If sex was special-category data, it would come under stricter data security requirements that would impose a duty of accountability on service providers and their staff and contractual partners. Mishandling such data can lead to serious breaches of privacy and significant legal penalties. When a business discovers that it has been subject to a data breach, it is required to notify data-protection authorities within 72 hours and also to notify the data subject. 

It is simply outside the EHRC’s mandate to issue guidance about data protection, and doing so at the government’s insistence undermines the EHRC’s statutory independence. This advice in any case is wrong. And it undermines the rest of the guidance, recreating the problem which the For Women Scotland judgment solved and harming women’s rights. 

1. The section is outside the EHRC’s mandate

The EHRC code of practice is issued under the Equality Act 2006, which allows the commission to issue a “code of practice in connection with any matter addressed by the Equality Act 2010”. It requires that the code is designed to ensure or facilitate compliance with the act or an enactment made under that act, and to promote equality of opportunity.

The section on asking about sex goes well beyond this mandate. There are no specific provisions on asking about sex in the Equality Act. The correct regulator to produce guidance on data protection is the Information Commissioner’s Office. 

2. The section is wrong about data-protection law

It is true that sex is personal information and that data-protection legislation can apply. But it is wrong to say that it is sensitive or special-category data. Article 9 (1) UK GDPR defines special categories of personal data as being personal data that reveals racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, genetic data, biometric data and data concerning health or a person’s sex life or sexual orientation. It does not include sex.

The Information Commissioner has said that information about someone’s “gender identity” might be special-category data, depending on the circumstances:

“For example if the information also reveals specific details about the person’s health status or medical care, or an organisation uses it to make specific inferences about health.”

The Information Commissioner goes on to say:

“If there’s no specific information or inference about someone’s health (or any other specific category such as sexual orientation or sex life), it isn’t special category data.”

Sex (whether someone is a man/male or a woman/female) simply isn’t special-category data. And data on a person’s sex simply doesn’t reveal whether they identify as trans. 

Sex is ordinary personal data that can be used routinely (similarly to other personal information such as a person’s name or age). In any case purely oral information – such as the reply to a question about whether someone is a man or woman in order to direct them to the correct facilities – would not come under data protection at all. As the judge said in the case of Scott v LGBT Foundation about oral information:

“That is not what the DPA is concerned with: it is a very specific scheme based around records and processing. There are other areas of law (in particular, the law of confidentiality) which are the appropriate vehicle for making such complaints if they are well-founded.”

3. The section incorrectly requires a spurious human-rights balancing test

Paragraph 13.161 says:

“Personal data includes information about a person’s sex which may also be protected under Article 8 of the European Convention on Human Rights (ECHR). In particular, it is important to be aware that some people, including some trans or gender non-conforming people, may wish to keep such information private as far as possible and may find it distressing to be asked about their sex.”

As Supreme Court judge Lord Reed explains in a recent helpful speech on proportionality: 

“The UK has what is sometimes called a “dualist” system, which means that international and domestic law operate on different planes. Treaties such as the Convention are binding on the UK on the international plane, but they do not form part of the law of the UK unless Parliament passes legislation to implement them. This is a necessary corollary of Parliamentary sovereignty.” 

As Lord Reed says, domestic law continues to be the first port of call for anyone whose rights have been infringed. UK GDPR is the primary domestic legislation that codifies and enforces the fundamental right to data protection, which stems from Article 8. 

Individual service providers are not required to go beyond data-protection law and treat oral information or data on sex as special-category data, or to undertake human-rights analysis before processing information in line with GDPR or DPA.

The claim that asking for information on a person’s sex is a breach of Article 8 is widely made by transactivists, as on the TransLucent “Article 8 carry card”. 

The Article 8 argument was also used by the government unsuccessfully to try to defend the Office for National Statistics’ decision, in the run-up to the most recent census, to direct people to answer the sex question according to their preferred sex rather than their actual sex. This decision was overturned in court after a challenge brought by women’s-rights activists.

It is neither necessary nor possible to consider the unknowable mental state of individuals before collecting or acting on routine information. Although it may be true that some people find it distressing to be asked about their sex, a service provider cannot know or guess which people they will be (and the information that an individual suffers from such feelings is in itself sensitive). 

If a person wants to keep a piece of personal information private in any given situation, whether because of feelings of distress or other reasons, they can “prefer not to say”. However, refusal to give information or to allow it to be recorded where it is needed may mean the person is unable to access a service. This is not a breach of Article 8, any more than it is a disproportionate breach of privacy to require a person to confirm they are over 18 to buy alcohol, or to explain the basis on which they have parental responsibility to enrol a child in school and then to recognise that relationship (as a father or mother) in daily interactions with that school and others with a duty of care in relation to that child.

4. The section undermines safeguarding

An organisation that follows the guidance and treats sex as “special category” data will need to apply this to everyone.

But sex is often relevant for everyday life, formal and informal risk assessment, duty of care and safeguarding, as well as for decisions concerning consent and propriety. Sex forms the basis of many ordinary interpersonal relationships, in particular sexual relationships and parenthood. 

Creating an environment where people are expected to treat sex as sensitive “special category” data, to pretend they don’t know what sex other people are, to believe that it is reasonable for people to be offended if asked to confirm their sex and to assume that any individual might not be the sex they appear to be makes it impossible to enforce sex-based rules and creates an environment where ordinary safety and safeguarding are compromised. 

It forces people to pretend they don’t know what a man and a woman look like, that men are statistically more likely to undertake violent or predatory behaviour and that women are the targets for specific types of male violence. Neither the Equality Act nor UK GDPR requires this kind of wilful stupidity. 

A man who has gained access to a female-only space is not simply a man within the ordinary male risk profile: he is a man who demonstrably possesses the additional risk factor of not respecting rules that exist to protect women. What is relevant is his sex: the fact that he is a man. The fact that he may be trans, non-binary, gender fluid, gender non-conforming or suffering from gender dysphoria is irrelevant (and may well be sensitive information). 

Recording such factors or specific concerns would involve much greater processing of personal information than simply asking people to confirm their sex or to leave the space if they do not wish to, without processing any personal data.

5. This section is likely to cause unlawful harassment related to sex

The guidance extrapolates from its misunderstanding of Article 8 and UK GDPR to suggest that service providers and their staff must ask themselves several complex questions before deciding that it is proportionate to challenge a man in a women’s facility and ask him to leave. After thus tying itself up in knots, it warns (at 13.170): 

“It is unlikely to be either practical or appropriate to approach any particular individual to make enquiries about their sex in relation to facilities, such as toilets, which are incidental to the primary service.” 

There is no legal basis for this instruction, which in effect licenses men to enter women’s facilities and claim that it is inappropriate, possibly unlawful and a breach of their human rights to challenge them. 

Telling staff supervising single-sex spaces that they must second-guess themselves when they become aware of a man engaging in the deviant behaviour of accessing a female-only space, or risk breaching data-protection law, will lead to unwanted conduct related to the protected characteristic of sex that is likely to meet the definition of harassment in the Equality Act. It “violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment”.

Section 111 of the Equality Act 2010 makes it unlawful to instruct, cause, or induce another person to commit an act of discrimination, harassment, or victimisation. For the past 15 years men with the inappropriate desire to use women’s spaces have cited legally incorrect advice previously given by the EHRC, which was inserted in the now-superseded 2011 version of the code of practice after consultation with transactivist groups.

It is utterly insulting, and could well be an act of inducement of mass harassment against every woman in Britain, that the OEO has pressured the EHRC to insert a misstatement of the law into its new guidance that will lead to service providers wrongly viewing sex as “special category data” and making it difficult to challenge and remove men from women’s changing rooms and toilets.

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Read the code of practice.

Read our first analysis of the code.

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The post EHRC guidance finally here! appeared first on Sex Matters.

Nothing in the code of practice changes the Equality Act 2010. What it does is provide detailed, practical guidance on how to interpret the act. It also removes the excuse of “waiting for guidance”.

Duty bearers that have been using this excuse for inaction, or telling themselves that their policies based on gender self-ID “remain lawful”, are acting irresponsibly and taking significant risk. 

The previous version, published in 2011, was ambiguous about the relationship between the protected characteristics of sex and gender. It said: 

“If a service provider provides single- or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present.”

It told service providers to operate based on gender self-ID and that they could exclude transgender individuals from services provided for members of the opposite sex only on a “case-by-case” basis. This ignored other people’s rights, was unworkable for service providers and, as the Supreme Court made clear in 2025, was wrong in law.

The new code of practice has removed that error and provided much more detail on the single-sex and separate-sex exceptions in order to counter confusion and misinformation 

The new guidance says clearly (emphasis added): 

13.130 If a service provider (or a person providing a service in the exercise of public functions) admits trans people to a service intended for the opposite sex, then it can no longer rely on the [single and separate sex exceptions]. This means that if a service is provided only to women and trans women or only to men and trans men, it is not a separate-sex or single-sex service under the Equality Act 2010. 

13.131 A service like this is very likely to amount to unlawful sex discrimination against the people of the opposite sex who are not allowed to use it. A service which is provided to women and trans women could also be unlawful sex discrimination or lead to unlawful harassment against women who use the service. Similar considerations would apply to a service provided for men and trans men. 

It is possible to offer a mixed-sex service alongside a single-sex service. A mixed-sex service must be open to all service users.

There is a lot of detail in chapter 13 on the exceptions. But in most situations providing a single-sex or separate-sex service is going to be simple and straightforward, as the EHRC has already said in its interim update.

In order to understand the exceptions in the Equality Act, duty bearers need to understand how the act works. The code of practice explains this.

The protected characteristics

The guidance begins by defining the nine protected characteristics, including sex and gender reassignment. 

“Sex” means being male or female. The comparator in a sex-discrimination claim is someone of the opposite sex. 

“Gender reassignment” is a broad characteristic which covers someone who is at any stage of a personal transition journey, defined as “proposing to undergo, undergoing, or having undergone a process to reassign sex”. It is a protected characteristic separate from sex or sexual orientation. Having this characteristic does not change a person’s sex. 

A trans person is protected from sex discrimination based on their sex at birth, and also from sex discrimination related to their “acquired gender” (for example through association or perceived sex). 

Unlawful acts

The guidance then explains the familiar Equality Act framework of unlawful acts:

• Direct discrimination: occurs when a person is treated less favourably because of a protected characteristic. It is generally unlawful, unless an express exception can be relied on. This means that providing a single-sex or separate-sex service is likely to be unlawful direct discrimination, unless one of the exceptions in the Equality Act applies.
• Indirect discrimination: occurs when an apparently neutral provision, criterion, or practice puts people sharing a protected characteristic at a particular disadvantage. It is not unlawful if it is a “proportionate means of achieving a legitimate aim”.
  
  • The aim must be legal, non-discriminatory, and a “real, objective consideration” (for example, ensuring health and safety, wellbeing or dignity). Reducing costs alone is not a sufficient aim.
  • The means must be proportionate, meaning the disadvantages caused must not be disproportionate to the aims pursued.
• Harassment: involves unwanted conduct related to a protected characteristic (including age, disability, gender reassignment, race and sex) that violates an individual’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment.
  
  • The effect of the conduct is sufficient to establish unlawful harassment, regardless of intent.
  • In deciding if conduct is harassment, courts consider the individual’s perception, circumstances and whether the effect is objectively reasonable (that is, not based on hypersensitivity).
  • The other person’s right to freedom of thought, religion and speech must also be considered.
• Victimisation: subjecting a person to detriment because they have done a “protected act”, such as bringing proceedings under the act or making an allegation of a breach.

Duty bearers 

The code of practice relates to the part of that act that covers providers of services (such as local authorities, hospitals and shops), those exercising public functions (such as law enforcement and licensing) and associations (with 25 or more members and regulated admission).

Exceptions

The new code of practice includes detailed guidance on the Equality Act’s exceptions, which permit otherwise unlawful discrimination. 

• Positive action: it is lawful for service providers and public authorities to to take proportionate action to overcome or minimise disadvantages, meet different needs, or encourage participation for people who share a protected characteristic.
• Charities: it is lawful for charities to provide benefits exclusively to people sharing a protected characteristic if it is a proportionate means to a legitimate aim, or for the purpose of preventing or compensating for a disadvantage.
• Competitive sport: it is lawful to organise single-sex or separate-sex events where an average person of one sex would be at a disadvantage due to physical strength, stamina or physique.
  
  • Sex-based rules should be applied on the basis of biological sex:

13.69 Arrangements relating to participation in a gender-affected activity which do not enable fair and safe competition between men and women may amount to unlawful sex discrimination against competitors of either sex, if they are placed at a disadvantage because of those arrangements.

…

13.73 Any sex-based rules or arrangements relating to participation in a gender-affected activity (read paragraph 13.65) should be applied on the basis of biological sex. Therefore, trans people should not be included in single-sex or separate-sex competitions for the sex with which they identify….

• Trans people can be excluded or treated differently from members of their own sex if necessary for fair competition or safety. Organisers should consider alternative arrangements, such as mixed-sex categories, to enable trans people to participate.
• Separate services for women and men: it is lawful to provide separate services or facilities for women and men if a joint service would be less effective and providing the service separately is a proportionate means of achieving a legitimate aim.
• Single-sex services: it is lawful to provide a service exclusively to one sex if it is a proportionate means of achieving a legitimate aim and one of six conditions applies (for example, that only one sex needs the service; that a woman might reasonably object to the presence of a man due to undressing or being in a vulnerable situation; or that physical contact is involved).
• Proportionality considerations: a legitimate aim for single-sex provision includes ensuring the safety, privacy and dignity of women, men or both.
  
  • The service provider must balance the benefits of the single-sex service (such as reduced risk to women in contexts of undress or male violence) against the needs of all potential users and the impact on those excluded, including trans people.
  • If a service provider allows trans people to use a service intended for the opposite sex, it is no longer a single-sex service under the act and is very likely to be unlawful sex discrimination against others.
  • If a single-sex service is justified, preventing, limiting or modifying a trans person’s access to the service for their own sex is lawful only if it is a proportionate means of achieving a legitimate aim, such as preventing discomfort or distress for other service users. “Service providers should consider whether other service users could reasonably object because they are worried about sharing a single or separate-sex service with someone who appears to be of the opposite sex.” (13.147)
• Communal accommodation: exclusion based on sex or on gender reassignment is lawful only if it is a proportionate means of achieving a legitimate aim and the accommodation is managed in a way that is as fair as possible to both men and women.

Importantly, the EHRC explicitly states that if a women-only service admits “trans women” (trans-identifying men), it may cease to qualify legally as a single-sex service under the Equality Act. That is a major clarification. For years, many organisations assumed they could remain “women-only” while also operating on the basis of gender identity. The guidance says that this will undermine reliance on the act’s single-sex exceptions (see paragraph 13.130 above).

Considering women’s needs

The guidance explicitly recognises that women may reasonably object to the presence of males in contexts involving undressing, trauma recovery or intimate services. The guidance treats those concerns as legitimate factors in the proportionality assessment about whether to provide a single-sex service. 

13.107 …It is likely to be reasonable for a woman to object to the presence of a man if she will be getting undressed or in a vulnerable situation when she is using the service. 

It makes clear that if a service provider decides to provide a service only on a mixed-sex basis, in situations where women are likely to be in a state of undress; where there will be limited ability to leave or to choose an alternative service; where the service is provided a result of or connected with male violence against women; or where the physical differences between men and women are relevant to the experience of the service and put women at a particular disadvantage, this could be direct or indirect sex discrimination against women who use the service or lead to unlawful harassment against them. 

Considering trans people’s needs

The guidance makes clear that it would be direct gender-reassignment discrimination to restrict access by trans people to services provided to people of their birth sex or people of both sexes. However, in relation to single-sex and separate-sex services and sports, this may be lawful. 

For universally necessary services like toilets, it is very unlikely to be proportionate to leave a trans person with no service they are allowed to use.

Service providers are encouraged to consider alternative arrangements, mixed services or additional provision where possible. They are also expected to treat people sensitively and avoid unnecessary humiliation.

Asking about sex

There is a new section concerning asking users about their sex. This section is overcomplicated and contradictory. Although it says that service providers can ask and record what sex people are, it suggests that this is an extraordinarily difficult thing to do, rather than a simple matter of observing or recording ordinary personal data in a routine way. 

• Service providers can ask an individual about their sex where this is a proportionate means of achieving a legitimate aim (such as diversity monitoring, operational reasons or lawful single-sex provision).
• In single-sex services, the primary method for establishing lawful provision is clear communication (such as “signage, promotional materials including online and hard copies and verbal information provided as part of any enrolment, admission or induction process”; 13.167).
• Asking an individual to confirm their sex may be legitimate where there is clear evidence  (based on physique or behaviour, for example) of the opposite sex accessing the service or because other people have complained. 
• Although the code prevaricates and expresses caution about asking a person what sex they are, it concludes that a service provider can ask, and can exclude someone of the wrong sex (13.178).
• The guidance notes that no official UK document reliably proves biological sex, since documents like passports and driving licences can be changed.

Section 13.182 says: 

“Information about sex is likely to constitute special category data for the purposes of the Data Protection Act 2018 (DPA) and UK General Data Protection Regulations (GDPR). Processing personal data should be done with regard to that legislation and the constraints of the relevant systems and resources.”

This is wrong in law. 

Article 9(1) of UK GDPR defines special category data as “personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be prohibited.” It does not include sex. 

22nd May: This post was updated to correct information in the first paragraph about the current status of the code.

The post What is in the new guidance? appeared first on Sex Matters.

The Equality Act is clear, but the guidance needs to combat decades of misinformation – from the Equality and Human Rights Commission and Government Equalities Office among others – as well as National Health Service policies encouraging people who identify as transgender to believe they have a right to access opposite-sex services. 

We have set out some points we will be looking for in the guidance when it comes out. 

1. Is it clear that sex is immutable and biological?

• The protected characteristic of “sex” refers to a man (male) or a woman (female) of any age. 
• Everyone has a sex, and it cannot change.
• When proving sex discrimination, the comparator is a person of the opposite sex. 
• A person’s sex is ordinary personal information that can be recorded in line with data-protection laws. 
• Everyone is protected against discrimination based on sex (including the sex that they may be perceived as or associated with). 

2. Is it clear that protections against gender-reassignment discrimination do not mean the right to be treated as the opposite sex?

• “Gender reassignment” covers people at any stage of a personal process of transition. 
• Having this protected characteristic does not depend on having surgery or a gender-recognition certificate. 
• Having this protected characteristic does not provide a right to access services provided for the opposite sex. 

3. Is it clear about how the prohibitions against discrimination and harassment work?

• It is likely to be direct sex discrimination to exclude someone from a service because they are a man or a woman (that is, to provide the service only to women or only to men), unless an express exception applies.
• It is likely to be direct gender-reassignment discrimination to exclude someone from a service for both sexes or for their own sex on the grounds that they are trans, unless an express exception applies.
• It is likely to be indirect sex discrimination towards women not to provide a single-sex or separate-sex service in situations where women would be disadvantaged by being offered only a mixed-sex service. 
• It is likely to be harassment related to sex to expose people to the unwanted presence of members of the opposite sex in situations where they expect same-sex privacy.
• It is not harassment related to sex or gender reassignment to have and to communicate lawful sex-based rules and expect people to respect them. 

4. Is it clear that single-sex associations and charities are lawful?

• It is not unlawful to form associations for people who share a protected characteristic, such as for women only or for men only.
• Associations that follow their own lawful rules are not committing unlawful sex discrimination or gender-reassignment discrimination.
• Associations that do not follow their own lawful rules are likely to engage in unlawful discrimination or harassment. 
• It may be lawful to form associations explicitly for combinations of groups of people with different protected characteristics (such as women and transsexuals). 
• Charities are required to pursue their objects, and these can include meeting the specific needs of people who share a protected characteristic such as women or men. 

5. Is it clear that it is lawful to provide women’s and men’s sporting competitions?

• It is not unlawful to treat men and women differently in a sport, game or other activity of a competitive nature where the average person of one sex is at a disadvantage as a competitor compared to the average person of the opposite sex due to physical strength, stamina or physique.
• In particular, it is not unlawful to arrange single-sex competitions, mixed doubles and team sports with rules specifying the numbers of men and women on the teams.
• Organising sporting competitions that are not fair and safe for women and girls is likely to be sex discrimination. This can include only providing a mixed category. 
• There is no lawful mechanism for allowing men who have reduced their testosterone levels to count as women for the purpose of lawfully conducting sporting competitions. 
• Women who have taken testosterone may be excluded or treated differently from other women in sporting competitions, where it would not be fair or safe for them to compete. 

6. Does it explain why single-sex and separate-sex services are often needed, particularly by women?

• Physical differences between women and men can mean that they have different needs.
• In many ordinary everyday settings women in particular prefer separate-sex facilities for dignity and privacy.
• In any situation that a woman has been told is female only it will be reasonable for her to object to the presence of a man. 
• Where a service is provided in response to male violence against women it is likely to be lawful to provide it as a single-sex service.
• Any service that is not single sex or separate sex – in particular a so-called “single gender” service – is mixed sex. 

7. Is it clear about the legal basis for single-sex and separate-sex services?

The guidance should:

• set out the reasons for providing a single-sex or separate-sex service
• explain that the test of “proportionate means of achieving a legitimate aim” relates to the service itself, and does not require case-by-base application
• warn service providers that if they provide a service based on gender identity instead of sex they will not be operating a single-sex or separate-sex service under the Equality Act and will be liable to claims of unlawful sex discrimination
• explain that in certain circumstances (where it is a proportionate means to a legitimate aim, such as preventing alarm or distress for other service users) it may be lawful for a trans person to be excluded from a separate-sex service for their own sex. 

8. Does it provide practical guidance for duty bearers?

The guidance should:

• explain that measures to ensure that trans people are not disadvantaged mean offering a separate unisex option where this is practical
• offer guidance on what duty bearers can do to encourage people to follow lawful rules – such as making policies and signs clear – and what to do if they refuse 
• make clear that staff can operate on the evidence of their own eyes and ears.

The post What would good guidance look like?  appeared first on Sex Matters.

Then after 40 days, if neither house passes a resolution disapproving the draft, it will come into force. 

The EHRC has admitted that it amended the guidance after the government provided it with “a narrow set of comments” on its previous draft. 

Neither the minister nor the independent regulator is mandated to engage in this sort of delay and negotiation whereby the independent regulator edits its guidance to meet the preferences of the government.

Section 14(7) of the Equality Act 2006 says that before issuing a code the EHRC shall submit a draft to the Secretary of State, who shall either approve the draft and lay a copy before Parliament or give the EHRC written reasons why she does not approve it. The legal framework does not envisage this as a back-and-forth process of backroom negotiations between the government and the EHRC. 

It is concerning that in her statement the Minister for Women and Equalities continues to focus on specialist service providers such as hospitals and women’s refuges and has still not made clear that ALL employers and service providers that offer single-sex or separate-sex facilities do so under the Equality Act, which recognises that men who have the protected characteristic of gender reassignment remain men, and do not have the right to access facilities provided for women and girls. 

As our report One year later makes clear, the past year’s delay has caused serious harm to countless women. The statement that the government has “always supported the protection of single-sex spaces based on biological sex” is a slap in the face for women and girls who have faced harassment and hounding from jobs and services for calling for the law to be upheld. 

Delaying laying the guidance till after local council and devolved administration elections is more unjustified procrastination.

The government has patted itself on the back, saying: “We are getting it right, showing leadership by implementing the clarity the Supreme Court ruling delivers.” Yet government departments up and down the country are still operating with unlawful policies that the previous head of the civil service refused to withdraw.

The post Updated EHRC code to be published in May appeared first on Sex Matters.

Sex Matters intervened in support of the EHRC.

Mr Justice Swift endorsed the interim update that the EHRC published in April last year as an accurate statement of the law for employers and service providers and ruled that “transsexual persons” under the Equality Act have no right to use opposite-sex toilets or changing rooms.

The EHRC advice on the law is accurate

GLP was judged not to have standing as it lacked “sufficient interest” in the legal questions. The three anonymous claimants did have standing, and so their substantive arguments were considered. The court dismissed their claims in their entirety. It found nothing that was wrong in law about either version of the EHRC’s statement, and found that the claimants’ human rights had not been breached by being told not to use facilities provided for the opposite sex. 

Alternatively GLP argued that if the EHRC were right about the law, then the Equality Act and the 1992 workplace regulations breach human rights. The court dismissed the human-rights claim.

This judgment makes absolutely clear that it is lawful for employers and service providers to provide straightforward separate-sex facilities, and that it may be unlawful indirect discrimination against women not to.

Maya Forstater, CEO of Sex Matters, which intervened in the case, said:

“This judgment vindicates the EHRC’s swift action in publishing practical guidance in April last year, just a few weeks after the Supreme Court judgment. The law is clear. There was never any excuse for the government, public bodies, regulators, charities or businesses to delay in implementing the Supreme Court judgment.

“We are proud to have provided witness evidence to the High Court to ensure that when the judge was thinking about the black letter of the law, he was also reminded of the underlying reality of what words like privacy, decency and propriety mean in the real world for women and girls using showers, changing rooms and toilets.

“The Secretary of State should now lay the full EHRC code of practice for service providers before Parliament without further delay. The head of the civil service should withdraw its unlawful model policy and endorse the approach set out by the EHRC. Other regulators, including the Health and Safety Executive, the Care Quality Commission and the Charity Commission, should update their own guidance swiftly to make clear that separate-sex accommodation and facilities are genuinely separated by sex.”

The legal arguments 

The GLP claimants argued that the Workplace (Health, Safety and Welfare) Regulations 1992, which require “suitable and sufficient” facilities for men and women, require employers merely to provide separate rooms with signs but not to actually restrict who uses them in practice. Mr Justice Swift said this “places form over substance” and disregards the “obvious purpose” of the workplace regulations, which was “the provision of private space for each sex for reasons of conventional decency”.

He dismissed as “unconvincing” the argument that a women’s lavatory is not required to be female-only because it might sometimes be cleaned by a man, or be used by a young boy accompanying his mother or by a man in some kind of emergency:

“Who cleans a female lavatory from time to time is a matter entirely apart from whether that lavatory remains single-sex. The ‘emergency’ example carries no weight precisely because it is an emergency – an event that is unplanned and driven by extreme circumstances. The example of the mother taking her young son to use the female lavatory is a bad example. That (and the corresponding practice for fathers and young daughters) is a common practice but is no more than a facet of ordinary parental responsibilities.”

He recognised that none of these examples are materially the same as an employer allowing men into the ladies’ toilets, changing room or showers in order to be “trans-inclusive”:

“An employer would not comply with the obligation under regulation 20 (to make sufficient provision in separate rooms containing lavatories provided for men and women, respectively) if he permitted the room for women to be used by some men and vice versa. That would go against the purpose of the regulation.”

He also dismissed the argument that expecting people not to use the wrong lavatories would place too great a burden on employers to “police” the doors or risk criminal prosecution for breach of the workplace regulations. That point, he said, was significantly overstated: 

“An employer who provides the lavatories required in the rooms required, and who in good faith adopted and applied a policy that the female lavatories were available only to biological women and the male ones only available to biological men, would do what is required by the Regulations. The employees concerned would know what was expected of them.”

Following the hearing, GLP and the individual claimants had filed written submissions relying on the judgment of the Edinburgh Employment Tribunal in Kelly v Leonardo, in which Employment Judge Michelle Sutherland had taken a different view of the workplace regulations, saying that applying a biological interpretation was “unworkable” and claiming that “the biological sex of another toilet user is likely to be unknown and may be unknowable”.

Mr Justice Swift said that none of the points set out in that judgment “cause me to doubt any of the conclusions above or the meaning and effect of regulation 20”.

The claimants had also tried to argue that the terms “man” and “woman” in relation to the 1992 workplace regulations refer to the “acquired sex” of persons with a gender-recognition certificate. Here Mr Justice Swift referred directly to the Supreme Court in FWS which said that the effect of section 9(1) of the GRA “must be carefully considered” in light of the wording, context and policy of other statutes that refer to men and women. He also referred to the Supreme Court’s reasoning on communal accommodation, which provides for separate sleeping accommodation and associated sanitary facilities for reasons of “privacy and decency between the sexes”.

The judge dismissed GLP’s argument based on remarks made by Lord Justice Pill in the 2003 Court of Appeal case Croft v Royal Mail, which suggested that at some point in a person’s transition the appropriate comparator for a claim of gender-reassignment discrimination would switch from being a person of the same sex as them (comparing a “trans woman” with another man) to being a person of their target sex (comparing a “trans woman” with “another woman”).

Mr Justice Swift concluded that the notion that the relevant comparator for a claim of gender-reassignment discrimination will change cannot survive the reasoning in FWS. 

The High Court endorsed the EHRC’s interpretation that Failing to provide a single-sex lavatory could comprise indirect sex discrimination against women and that Any single-sex lavatory provided will cease to be single-sex if transsexuals are permitted to use them other than in accordance with their biological sex. 

The EHRC update says: “If trans women are permitted to use a single-sex female lavatory all biological males must be permitted to use that lavatory.” Mr Justice Swift accepted that it could be direct discrimination to exclude a man from the ladies’ toilets (or other services for women), but he said this would depend on the facts of the case as to whether this was “less favourable treatment”.

The EHRC guidance offers the straightforward practical advice that if you provide single-sex lavatories (or other facilities), where possible, also provide a mixed-sex facility. Mr Justice Swift saw nothing objectionable in this and said it was not contrary to any requirement in the 1992 Workplace Regulations or discrimination under the Equality Act.

The three claimants had each referred to being concerned about using unisex lavatories instead of the ones they wanted to use. Mr Justice Swift said: “I accept these concerns are sincerely held,” but said that in reality “it ought rarely, if ever, to be the case that a person using a unisex lavatory rather than an available single-sex one will ever be a matter of comment by others”. In any case, he said, workplace gossip is a fact of life that everyone can expect to bear from time to time.

No human-rights breach

The claimants argued that if the statements of law made in the interim update are correct, that gives rise to a breach of Article 8: the right to private life and personal autonomy, which includes personal identity. The claimants submitted that if the law prohibits provision of a female facility “that may also be used by trans women”, this is an unjustified interference with the claimants’ article 8 rights.

Mr Justice Swift disagreed, saying the absence of a “trans-inclusive lavatory” is not the same as no lavatory at all. 

He said that “trans-inclusive lavatories” might possibly be provided consistently with the requirements of the Equality Act 2010 and the 1992 Workplace Regulations, if this was in addition to the suitable and sufficient provision for men and women. On this analysis, he said, neither the EA 2010 nor the 1992 Workplace Regulations gives rise to any necessary interference with any aspect of the claimants’ Article 8 rights. Alternatively, he said, even if the law results in prohibition of a “trans-inclusive lavatory” (as opposed to a straightforward unisex one) that interference would be capable of being justified taking into account the rights and freedoms of others. 

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