A Complaint to the Equality and Human Rights Commission

Will trans women be excluded from women’s toilets in Britain?

Kishwer Falkner, Chair of the EHRC, has announced that they will issue new guidance claiming that businesses and organisations can exclude trans women from services including toilets and changing rooms. Before such guidance is issued, it is worthwhile complaining to them about Falkner’s comments, referring to the Code of Practice and existing Guidance.

Download the complaints procedure here. You could write to complaints@equalityhumanrights.com or correspondence@equalityhumanrights.com.

Here is what I wrote. Please do not copy it, but you could use it as a template or a basis for your own complaint.

I am extremely frightened and concerned, having heard Kishwer Falkner interviewed on Woman’s Hour on 19 October 2021. She said that the EHRC would issue new guidance on trans women in women’s single-sex services, and appeared to disregard the EHRC’s own code of practice and even the rights of trans women in the Equality Act.

As a former solicitor and Employment Tribunal representative, and a trans woman, I have taken a particular interest in the Equality Act and its interpretation, and the falsehoods told about it by such anti-trans campaigning organisations as the Authentic Equity Alliance, Women’s Place UK, Fair Play for Women, the LGB Alliance and others. Kishwer Falkner appeared to echo these falsehoods, and failed to challenge the interviewer Emma Barnett when she echoed them. I hereby complain about Kishwer Falkner’s remarks, and her failure to challenge the interviewer.

The Telegraph reported that the EHRC would give the NHS “guidance on preserving single-sex wards”. As was clearly established in AEA v EHRC, the term “single-sex” in the Equality Act schedule 3 is used to include trans women as women, but the Telegraph and anti-trans campaign groups ignore this. Anti-trans groups use the inflammatory term “mixed-sex” to refer to women’s toilets and changing rooms where there is no ban on trans women, even though there are few trans women and it is unlikely a trans woman will use that service. According to them, a “single sex” service is one which automatically excludes trans women. Emma Barnett echoed this false view, asking about “preserving single-sex spaces”.

As the Code of Practice- services, public functions and associations states, services “should treat transsexual people according to the gender role in which they present”, unless there is a compelling reason not to. By 2.19 of that code, transition is a personal, not necessarily a medical process. The Code gives the example that changing clothes is sufficient indication of an intent to transition, and the Act says that trans people are protected from the moment they decide to transition.

The Code gives an example at para 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.” The Code recognised that people might object to the presence of a trans woman out of mere prejudice. The Times, the Daily Mail, the Daily Telegraph, the Guardian, the aforementioned anti-trans campaign groups, groups on facebook and people on other social media sites such as Mumsnet and Ovarit continually convey the misinformation that cis women are entitled to single-sex spaces without trans women, or that trans activists are pressuring services to include trans women where they need not. That can only increase prejudice against trans women, and unjustified demands. The EHRC should stand against such demands.

For example, Fair Play for Women says that female patients would not want to see a patient’s exposed penis on a women’s ward, but I would not want to see anyone’s exposed genitals, nor as a patient want anyone to see my own except for medical need. Such examples increase prejudice.

As the code states, it is “the authoritative, comprehensive and technical guide to the detail of law”. It has increased authority having been laid before Parliament. Any guidance should not contradict it.

Women’s services can only exclude trans women if it is “a proportionate means of achieving a legitimate aim”. According to the code this must be on a case-by-case basis rather than a blanket ban, balancing the needs of the trans women. A trans woman has a definite need to use a women’s service rather than a man’s, or some neutral service such as a disabled toilet. Banning her from the women’s service breaches her privacy, and may subject her to the risk of violence. It must be absolutely clear that the exclusion is necessary because of a need specific cis women service users have, and not merely their prejudice, or the possibility that some cis women service users might have such a need. Even if there is such a need, it should be balanced against the trans woman’s.

Kishwer Falkner said that the EHRC would issue new guidance to businesses. She named toilets in theatres, and “retail”, as examples. The Code clearly indicates that trans women should not be excluded from these women’s services: at 13.58 its example says “The shop concludes that it would not be appropriate or necessary to exclude a transsexual woman from the female changing room as privacy and decency of all users can be assured by the provision of separate cubicles.” The same applies to toilets in any service.

The Telegraph claimed, “The EHRC’s plan to clarify the law is intended to strengthen the hand of organisations currently concerned that they will face legal action if they attempt to retain [cis] women-only facilities or groups.”

The Women and Equalities Committee in 2019 recommended that the EHRC give guidance how separate sex services could “choose how and if to provide them to a person who has the protected characteristic of gender reassignment.” This is not a choice. It is governed by discrimination law. Emma Barnett asked about “preserving single-sex [trans-excluding] spaces”. Kishwer Falkner said,

“We have through our complaints and other information that we collate we find that there is increasingly a problem in that businesses don’t seem to understand there are exceptions to nondiscrimination on single sex spaces within the Equality Act. So we’re not inventing anything new. All we’re going to do is explain in practical terms the different kinds of businesses and institutions public and private institutions what the EA actually says about being able in this case to discriminate in favour of women. It has to be legitimate, it has to be justifiable, and within those parameters that exception is allowed.”

Later she said, “The majority of the complaints come from experts in the field who point out to us that the exception in organisations websites is wrongly interpreted”. Would that the experts were such as barrister Robin Moira White, author of A Practical Guide to Transgender Law, but I fear they are the same as started and fought failed court actions such as AEA v EHRC. Also, I fear the “organisations” meant are not the aforementioned anti-trans groups, but Stonewall, and trans-including services such as Women’s Aid and Rape Crisis. Stonewall give an accurate account of the law in simple language.

I see little problem with the guidance as currently constituted. The section on Gyms, health clubs and sporting activity providers quotes the Code’s example of cubicles providing sufficient privacy. Rape Crisis and Women’s Aid include trans women as women. These are sufficiently large organisations to obtain counsel’s opinion on excluding trans women if they felt any need.

Because of what Kishwer Falkner said in that interview, and the Telegraph reported, I fear that guidance may not give sufficient weight to the needs of trans women, and may fail to distinguish between genuine need and mere prejudice of cis women. I fear that businesses may attempt to use it to exclude trans women even from women’s toilets, where the code clearly indicates this is inappropriate.

Kishwer Falkner’s comments in the interview, particularly about toilets and changing rooms in theatres and retail, indicate an unfair bias against trans women, and an unwillingness to fully support trans people’s rights. In view of the fact that the new guidance is promised in January, please reply to this complaint as soon as possible so that a further complaint may be made to the Ombudsman, should it unfortunately prove necessary.

The misinformation about women’s services has resulted in increased policing of women in toilets. Cis women of masculine appearance, including some lesbians, may be misgendered or challenged. The EHRC should act to oppose such misinformation and support vulnerable groups.

25 November: This appears to be the final response, yet is a bare acknowledgment, even a copy of a style sent to different complainants. “The contents of your email have been raised with the relevant teams in the compliance team who may find the information helpful when looking into single sex spaces guidance. We thank you for bringing this matter to our attention and we will give it due consideration when carrying out our functions.”