The Equality Act code of practice

Trans women are entitled to enter women’s services by self-identification. Under the Equality Act s7, we are treated as trans women- “transsexual persons”- from the moment we decide to transition, and entitled to use services according to the gender we present. That decision is before we see psychiatrists- years before, with the current waiting lists. So we self-identify. We have been entitled to do this since regulations in 2008. Self-ID is no new threat, but the ordinary law.

The EHRC introduced guidance in April 2022 contradicting the Code, but the Code still takes precedence. The code of practice on Services, public functions and associations reads as from a different time. It says, “The Equality Act 2010 sets a new expectation that public services must treat everyone with dignity and respect.”

The Code, which has more authority than any guidance the EHRC may issue, has useful arguments to put for trans inclusion. The statutory code of practice “is the authoritative, comprehensive and technical guide to the detail of law” (Foreword, p15). By contrast, the false or misleading non-statutory EHRC guidance released on 4 April 2022 has no authority, as it has not been laid before Parliament.

The code explains what is meant by “gender reassignment” (2.17-27). It is a personal process, not necessarily a medical process, so children starting social transition before seeing a psychiatrist are protected. This is particularly important when waiting lists are years long. Once we propose to transition we are always thereafter protected, even if we revert.

2.25 Where someone is diagnosed as having gender dysphoria and that has a substantial long term adverse effect on their normal day-to-day activities, they will be protected under the disability discrimination provisions of the Act and so entitled to reasonable adjustments to services. I am not disabled by gender dysphoria. I am disabled by society’s reaction to my gender dysphoria. However that might be an additional argument to help me to use women’s services.

2.26 Where someone has a GRC, the GRA says they must be treated according to their acquired gender. But a request to show a GRC compromises my privacy- my birth certificate should be sufficient. I would argue a passport should be sufficient too.

By the Equality Act schedule 3, paras 26 and 27, services may be for one sex only, or for the sexes separately. By para 28, a women’s service may exclude trans women if it is “a proportionate means of achieving a legitimate aim” (PMOALA). The code explains what is meant by that (5.25-35). Reducing costs is not a sufficient aim. It must be objective, not discriminatory in itself, and legal. Ensuring the wellbeing and dignity of service users may be such an aim, but it must be assessed objectively.

So a business might claim that excluding trans women from a women’s toilet “ensured the wellbeing and dignity” of cis women, but that would need to be a proven objective fact, not a mere assertion, not a mere demand from prejudiced cis transphobes.

5.35: “the more serious the disadvantage, the more convincing a justification must be”. It’s fine to send men to a men’s toilet, but not trans women- for us to use a men’s toilet outs us, humiliates us, takes away our right to privacy and may involve a risk of violence. For us to use a disabled person’s toilet also disrupts the disabled people who need it.

13.57-69 discusses trans people and separate sex or single-sex services. 13.57 says specifically that services “should treat transsexual people according to the gender role in which they present”. We are “transsexual” from the moment of deciding to transition. “The intention is to ensure that the transsexual person is treated in a way that best meets their needs.” If it is a service relating to the birth sex, such as reproductive health for trans men, it should preserve their privacy.

13.60 Any exception “must be applied as restrictively as possible and the denial of a service to a transsexual person should only occur in exceptional circumstances.” It should apply on a case-by-case basis, not a blanket ban. The service should balance the trans person’s needs and the detriment to them against the needs of other service users. “Care should be taken in each case to avoid a decision based on ignorance or prejudice. Also, the provider will need to show that a less discriminatory way to achieve the objective was not available.”

13.61 the same rules apply to communal accommodation.

13.75-86: gender reassignment may be grounds to refuse insurance, or charge a trans woman a man’s premiums, but not a justification for discrimination in any other financial service.

In sport, 13.45, the authorities can exclude trans women if necessary to secure safety or fair competition.

The code has examples mentioning trans people. Some of these are relevant to trans people. Some are relevant to anyone who might suffer discrimination- for example 3.33, where an employee refuses to serve a trans customer: the employer is liable for a discrimination claim if they cannot show they took all reasonable steps to prevent the employee discriminating.

4.5 A group of women complain to a health spa manager saying they feel uncomfortable round a trans woman. If the spa excludes the trans woman, “This is less favourable treatment of her, as it puts her at a clear disadvantage compared to the spa’s other clients and will not be lawful if the spa’s conduct is because of gender reassignment.” At least the Code was alive to the possibility of prejudice, even if the EHRC chair Kishwer Falkner is not, now.

4.14 A trans woman notices restaurant serving single customers who arrived after she did. Court needs to examine why. That she is trans is a possible explanation, unless the restaurant can come up with one more persuasive.

4.19 A cis woman speaks out for fair treatment of trans women. If the cis woman suffers discrimination afterwards, this is direct discrimination because of gender reassignment.

8.8 Calling a trans woman “Sir” or “he” despite her objections is harassment.

11.26 Public functions- if a trans man’s licence to run a nightclub has more conditions than other licensees, because the licensing body thinks his clientele will be more rowdy, this is direct discrimination.

From Kishwer Falkner’s interview, it was clear the EHRC will no longer comply with its own code. I have made a complaint, which you could use as a basis for your own. It is worth downloading and reading the Code. This is what the guidance said in 2021, this is the 2022 version.

A Code of Practice is issued under the Equality Act 2006, which created the EHRC, ss14-15. s14(1), the Commission may issue a code of practice in connection with any matter addressed by the Equality Act 2010. The code, by s15(4)(b), “shall be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant”. The Act does not say that about what the EHRC calls “guidance” and what the Act calls information, advice or ideas. So the Code has precedence over the subsequent Guidance that contradicts it, and arguably the guidance is incorrect. A court should ignore the guidance when it contradicts the Code, and therefore so should service providers, and trans people asserting our rights.