Hello, UK trans community and allies. It’s been a long old day (year) waiting for this but it’s finally upon us. Bridget Phillipson has laid the new EHRC guidance before Parliament and it’s been published here.
Everybody scream.
Let’s have a little read together.
What is the Equality Act 2010?
Good question! It’s the main legislation on discrimination which applies in the UK (England, Scotland, and Wales, and differently in NI). The Equality and Human Rights Commission oversees it. They’re the ones who’ve written this delightful tome we’re currently holding.
What is the Code of Practice and why is it important?
There are different Codes of Practice, for example for employers or for service providers. This is the service provider edition. It is basically a guide to how to implement the Equality Act 2010 on your premises or regarding the people who interact with your service. Codes of Practice don’t impose legal obligations like a criminal statute would (you can’t get arrested under a Code of Practice). But they can be used to back up, for example, a discrimination claim under the EA2010. [s1.6]
Who can be discriminated against?
Lots of us. There are nine protected characteristics (reasons for potential discrimination) under the EA2010. For our purposes, we’re interested in sex and gender reassignment.
Sex is defined with reference to For Women Scotland v The Scottish Ministers so it refers to sex assigned at birth, or as the Supreme Court put it, ‘biological sex.’ A GRC does NOT change your sex for the purposes of the EA2010. Therefore, the EA2010 no longer considers a trans woman to be a woman (or a trans man to be a man) for the purposes of sex.
Gender reassignment is the protected characteristic of being trans and having taken any steps toward transition. Medical stuff counts but so do pronouns. Non-binary people count. [2.36-2.48]
That seems pretty bad. Why is this?
That’s a very long and political answer but basically: the Supreme Court made a terrible decision last year that redefined the characteristic of sex in the EA2010, and the government hasn’t bothered to legislate to redefine it in the EA2010 itself. Which would fix this. When you’re finished reading it, I beg you to go bother a politician.
Okay, but I’m a user of services and a member of associations and I’m worried now. What does it mean for me?
First of all let’s check you’re using a service (which can be free or paid), or joining/a member of an association (which has to be 25 people or more; have rules on admission; and have a selection process). A club, like an informal book club among a group of friends, with no admission rules or selection process, isn’t an association. A women’s gardening club of 30 members is.
I told you I was.
I’m a legal academic, I have to be precise. And you’re trans, right?
I am. I’m the imaginary trans woman you’re having this conversation with.
Okay. Let’s keep going. You can be discriminated against either directly (when someone treats you worse directly because of a protected characteristics), or indirectly. That’s a bit more complex, it’s where a service provider has a neutral rule or practice that ends up treating you less favourably. The example they give is an online booking system at a GP that should be accessible to everyone, but actually ends up putting older people at a disadvantage. You can also be discriminated against by perception. That’s when you’re treated less favourably because of the protected characteristic someone thinks you have.
Let me guess, the law lets people out of their obligations not to treat me less favourably sometimes.
Well, yes. If it’s a proportionate means to a legitimate aim, you can be treated in that way sometimes. But it is difficult to define the sometimes. A proportionate means, means ‘don’t go too far.’ And a legitimate aim means ‘and you’d better have a good reason for it.’
Unlike you law nerds, I have hobbies. I want to join a women’s competitive swimming team. Can I still do that?
I’m afraid not.
Why not?!
You’re going to have to bear with me through some transphobic language here, I’m sorry. It’s because the EA2010 defines swimming as a ‘gender-affected activity.’ The Code of Practice says that’s where “an average person of one sex would be at a disadvantage as a competitor against an average person of the other sex due to their physical strength, stamina or physique.” I know that’s horrible binary and exclusionary language and I hate to be the messenger for it.
They now define a women’s team as cis women only, and if a trans woman joined the team it would become mixed-sex.
What about a trans man who wants to join a team?
He might be out of luck altogether, under this guidance. He would not be allowed to join the men’s team with cis men, and if for reasons of ‘safety or fair competition‘ the organisers wish to exclude him from the women’s team, they can do so. They can’t do so just because he’s trans, but they can if they think it would be unsafe or unfair for the cis women competitors.
This is bullshit, you know that, Sandra?
I do indeed.
What else have you got?
I’ve got about 20 pages on separate and single-sex services. I’ll summarise.
Separate-sex services are easy. The Code states: “It is lawful to provide separate-sex services if:
- a joint service for women and men would be less effective, and
- providing the service separately to women and men is a proportionate
means of achieving a legitimate aim.”
I get the feeling you’re holding back.
I am. I really don’t want to get in the single-sex service weeds.
Well, you volunteered to write this blog, and I want to know.
Okay, here we go. There are 6 conditions for single-sex services. Sex here still means ‘sex assigned at birth.’
- If only people of that sex need the service
- If a joint service isn’t effective enough without also providing a single-sex service
- A joint service isn’t effective and the demand isn’t there to provide the service for the other binary sex (like a dv refuge)
- The service is at a place like a hospital where users need particular care or supervision
- The service is for more than one person at once and a woman might reasonably object to the presence of a man, or vice versa (changing rooms, etc)
- Where there might be physical contact (like a carer’s duties)
And when you say ‘a man’ there…?
Yeah. ‘A person of the opposite sex’ also means a trans person who was assigned to the opposite sex.
Great.
I hate this almost as much as you do.
What sort of reasons can a service provider give for excluding me and other binary trans people in these situations?
It’s generally around the vulnerability of the intended service users. If people will be undressing, if they can’t leave easily, if it’s a cis women’s service about male violence, etc. The service provider does have to consider if excluding trans people is the best/most proportionate way of achieving their legitimate aim, but if they decide it is and can back that up to the satisfaction of a court, then it’s fine to do so. The proportionality of what they do also depends on the size of the service, like you can’t expect a tiny shop to put in a whole new bathroom facility but you can expect it of a mall.
Isn’t it a bit odd to make a trans man who looks very masculine use the women’s changing room, though? Surely that would make the cis women feel strange?
Oh yes. He can be kicked out if it might cause “discomfort or distress” to the cis women. They do say that it’s very unlikely to be considered proportionate to complete leave (binary) trans people without a toilet, though, although I appreciate that’s not much comfort.
What about non-binary people like you, Sandra?
Oh, we don’t exist unless we’re a useful example for shoving off to a mixed-sex facility like the weirdos they clearly consider us.
But how are the service providers going to know whether I’m trans?
Well this is the thing. If it’s proportionate and with a legitimate aim in mind… they can ask.
They can what?!
They can ask. Even though that’s private under Article 8 ECHR, they can ask. As long as they’re not rude or offensive, because that might be harassment. Examples of when they might ask include if they’re worried about your “physique or physical appearance, behaviour or concerns raised by other
service users.“
What if I tell them that yes, I’m trans?
They can ask you to leave the single-sex service or bar you from coming back.
What if I tell them I’m not?
They can still exclude you if they “weigh up the relevant factors” and decide you probably are – but they can’t rely on a passport, driver’s licence, or even birth cert to make that decision. So it’s sort of based on legal vibes.
I swear to god, you lawyers are the worst.
We really are.
Anything else I should know?
It’s still illegal to snitch that someone has a GRC, under s22 of the Gender Recognition Act 2004 – so if someone finds out that you have one, and they pass that information on, they’re committing an offence.
Super.
Sorry I can’t be any more cheerful.
Fair play if you’ve come this far. Questions to me on bluesky please – @sandraduffy.bsky.social
Go easy on yourselves this evening, this is all very distressing stuff and it’s okay if you read this in a few parts or not all the way through. It’ll be here when you’re ready.
Sandra Duffy 