EHRC guidance on trans exclusion in 2021

Getting Equality enacted was not an end in itself. What matters is that businesses and public services should act and plan more thoughtfully and responsibly, that people will be treated fairly as they go about their everyday lives. The EHRC would advise and model this fairness, and enforce the law where necessary.

So says the introduction to the EHRC Code of Practice on discrimination in goods and services. It is a different time, so hopeful. A Code is a technical guide for lawyers and courts, including court precedents. The EHRC also provided non-statutory guidance as a simple introduction, designed to be practical and accessible. The Code was laid before Parliament to get Parliamentary approval, but the Tory government stopped doing that, so later the EHRC only issued technical guidance without government or parliamentary imprimatur, though still written by the same experts.

Update: In April 2022, the EHRC issued further non-statutory Guidance which advised services they could exclude trans people for almost any half-baked reason they could dream up. It does not comply with the Equality Act.

This is what the statutory Code of Practice says. The Guidance, now, gives useful hints on when a business might exclude trans women. First the core guidance for businesses, unchanged since 25 October 2019. I use archive links where available.

It uses the term “objectively justify” for the statutory term “Proportionate means of achieving a legitimate aim”. So businesses can provide single sex and separate sex services. The guidance quotes the list of reasons in the Act, sometimes in slightly simpler language.

“Generally, a business which is providing separate services or single-sex services should treat a transsexual person according to the sex in which the transsexual person presents (as opposed to the sex recorded at birth), as it is unlawful to discriminate against someone because of gender reassignment. Although a business can exclude a transsexual person or provide them with a different service, this is only if it can objectively justify doing so.

“A business may have a policy about providing its service to transsexual users, but this policy must still be applied on a case-by-case basis. It is necessary to balance the needs of the transsexual person for the service, and the disadvantage to them if they are refused access to it, against the needs of other users, and any disadvantage to them, if the transsexual person is allowed access. To do this may require discussion with service users (maintaining confidentiality for the transsexual service user). Care should be taken in each case to avoid a decision based on ignorance or prejudice.

“Where a transsexual person is visually and for all practical purposes indistinguishable from someone of their preferred gender, they should normally be treated according to their acquired gender unless there are strong reasons not to do so.”

The term “transsexual person”, as in the Act, means any trans person who has decided to transition, even if they have not done so yet. If a business decides it might have to exclude us it cannot have a blanket ban, but must consider each case. I don’t like the rules on “visually indistinguishable” trans people, because if they are acceptable “non-passing” trans like me should be accepted. It is particularly cruel for a visually indistinguishable trans woman who gets outed. But generally, the guidance is clear: businesses can exclude us if they have good reason to. Not otherwise.

The EHRC goes on to provide guidance for different businesses. This has been hastily revised recently.

For “gyms, health clubs and sporting activity providers,” the current version mentions us, but not the archive from 7 March 2021.

“You must also avoid discriminating against transsexual people,” it says, promisingly. Treat us in our true gender. But now the EHRC has hurriedly added an example:

“A clothes shop has separate changing areas for men and for women with individual cubicles. The shop concludes it would not be appropriate or necessary to exclude a transsexual woman from the female changing room as the privacy and decency of all users can be assured by the provision of the separate cubicles.”

A clothes shop is not a gym. Some gyms have cubicles, some have open benches and one or two cubicles, some have wee nooks for a bit of privacy, no-one should be staring. Trans women, especially the extra-scary ones with penises, will be more worried about being clocked than other users. I don’t go swimming any more. And here the guidance is clear. No need to exclude trans women, because there are cubicles. It does not mention alternative provision, because there is no need to.

Under Hotels, Restaurants, cafés and pubs, it says a pub should not refuse to serve a trans person, or anyone with a trans person, or require us to sit in a particular place. Nothing about loos, because we just use our true gender loo, as in the core guidance.

Under theatres and other entertainment venues there is no mention of trans at all.

Under Hairdressers barbers and beauty salons, it says a woman therapist who provides services in clients’ homes may decide only to provide the service to women, because the service involves physical contact.

Home visits are a risk. Anyone going to people’s homes should ensure someone knows where they are and will act if they do not reappear afterwards. But it does not mention trans, because trans women are no more likely to be a risk than cis women.

The only change I can find after the AEA v EHRC case comes under the Services for particular groups section of Voluntary and Community. 2019 archive. Last updated 23 June 2021.

Under “Separate services for men and women and single-sex services” it says an organisation may have a policy on trans users but this should be applied case by case, balancing the needs of the trans person against the needs, not prejudices, of other users.

It still says “visually indistinguishable” trans people should be treated in their true gender. Now it has added the phrase “One factor an organisation should consider” before that. It makes no sense- is being “visually indistinguishable” a reason to include, or just one factor? This is a sign of hurry.

In 2019 there was a final paragraph saying where someone has a gender recognition certificate they should be treated in their acquired gender for all purposes. That is not a true interpretation of the Equality Act, which still allows people with a GRC to be excluded. It is now deleted.

Before Kishwer Falkner took over, the EHRC stood up for disadvantaged groups. See this blog by Rebecca Hilsenrath from 2020 on Gender Recognition Act reform. She was the legal director of the EHRC until she resigned because of a lockdown breach. Her resignation shows her sense of honour.

The blog post says the gender recognition process should be modernised and simplified. The EHRC had changed its view since it responded to the consultation in 2018: now, it thought spouses objecting to a GRC should only have a limited time to veto it.

The blog post is not perfect. It says “the Equality Act provisions protecting the rights of women to access single-sex services and spaces must be preserved,” rather than saying that GRA reform does not affect EA rights. The rot had started, and the anti-trans campaigners had got to the EHRC. But it was a lot better than now, and it will get worse soon.

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