The new EHRC guidance on single sex services is designed to make trans exclusion easier, and even to confuse service providers so they exclude trans people when they should not.
Under the Equality Act, trans people use separate sex services according to the gender in which we present, from the moment we decide to transition. So a person assigned male at birth, who knows she will transition at some time in the future, uses women’s services when expressing herself as a woman, even if sometimes she presents male. The Code of Practice, published in 2010, makes this clear.
The new guidance does not state this. It does not explicitly state the opposite, but many readers would infer that trans women are not entitled to use “single-sex” services for women. The first page, an introduction, says separate sex services are for one sex.
Then it says, “We use the term ‘biological sex’ because this is how legal sex is defined under the Equality Act for people who do not have a Gender Recognition Certificate.” But that is not the case. As the Court of Session ruled, a trans man saying “I am a man” is telling the truth. Immediately after, it says single sex services are available only to one sex. A person who did not understand the rules, reading that, would think that trans women without a GRC, having male sex, would be excluded from single sex services for women. That is the opposite of the case.
Then it says, “excluding a trans person from, the separate or single-sex service of the gender in which they present might be unlawful if you cannot show such action is a proportionate means of achieving a legitimate aim.” I use the abbreviation PMOALA for proportionate etc.
That is misleading. Excluding a trans person is unlawful without a PMOALA. If we don’t sue, the provider might get away with it, though should get adverse publicity for breaking the law.
The EHRC says “you must… show… there is a… good reason for excluding trans people.” I read that, and thought, What? Surely they mean, if you exclude trans people you must show there is a good reason. But it does not say that. It assumes service providers will exclude trans people.
Page 2: the protected characteristics.
Page 2 explains that a service can be for one sex only, and says “A trans person who does not have a Gender Recognition Certificate retains the sex recorded on their birth certificate for the purposes of the Act.” Taken out of context, this is completely misleading. It implies that a trans woman without a GRC, having male sex, would be excluded from women’s services. That is the opposite of the law.
If someone read no further, they might feel they could exclude trans women from women’s services.
Page 3: when you can provide a separate or single sex service
Before the Equality Act considers which service trans people should use, it addresses when services can be separate or single sex. It has a number of common sense examples in schedule 3 paragraphs 26-7. The EHRC explains these more or less clearly, giving examples- separate homeless hostels for men and women, women-only swimming sessions at a pool. This is good as far as it goes, but again it never states that trans people use the service if they express themselves in the appropriate gender. With its definition of sex on the previous pages, anyone reading this and not knowing the law might be confused. They might think trans women would automatically be excluded from women’s services.
Page 4: Gender reassignment provisions
To explain the law clearly, this page should say first that trans women use women’s services unless excluding us is a PMOALA. It does not. It says service providers must consider their approach- whether to exclude or not- and the approach must be a PMOALA, as if service providers needed a PMOALA to include trans people.
It then gives examples, which are far too likely to exclude. The organisers of group counselling for female survivors of sexual assault exclude trans women because they consider attenders are “likely to be traumatised by the presence of a person who is biologically male”. What, without evidence? Without any attempt to include, or to persuade attenders to accept trans people? This was the example in the Explanatory Notes to the Act, and it is critiqued in detail here.
A domestic abuse service considers survivors “feel uncomfortable” (not traumatised) if there is a trans woman there. They would not allow this for a Black woman, or a Jewish woman, but they suggest mere discomfort is sufficient to exclude trans women. It is a matter of prejudice: trans women make cis women feel uncomfortable, suggests the EHRC, as if that is totally normal. It is completely against the principles of the Equality Act.
It suggests a women’s fitness class could exclude trans women, or that a community centre could require all trans people to use the toilet for their biological sex, or a gender neutral toilet. We should be outed and shamed.
If including trans women in women’s services, the guidance says providers should “Think about how your actions will affect both trans people and other service users”. It won’t affect those others, usually. But anti-trans campaigners claim to be “affected” by my presence. This is a licence for prejudice and exclusion.
It suggests excluding trans women where there is limited physical space(!)
The whole basis of the guidance is helping services to exclude trans women, without ever explaining that trans women should usually be included.
It says a GRC does not affect entitlement to be in a service, which is true. We have the right to be there, even without a GRC.
A service excluding people may find it “appropriate to explain to individual trans people who wish to access the service”. So I think, I will not just be barred, I will be subjected to a lecture on why I should be barred.
I hope others will challenge the guidance, and that it helps show the UN that the EHRC should lose its status as an Equality organisation. Meanwhile, if you (a trans woman) are excluded from women’s services, try to keep safe. If you feel safe to do so, challenge.
This is difficult. You will be feeling powerful emotions, of anger, fear and humiliation. Keep calm- I find taking a moment to acknowledge the feelings makes this easier.
Ask why you are being excluded. This will force the excluder to say that you are trans, or even that you are a man. This puts them further in the wrong.
Then state that trans women are entitled to use women’s services under schedule 3 of the Equality Act. A bit of legal jargon always sounds impressive. They might think you know what you are talking about, and back off.
Ask them to explain any reason they give for excluding. State that you intend to go in, and if not allowed may raise court action.
Avoid a physical confrontation. A person who feels entitled to exclude you may feel entitled to assault you.
It’s been years since I raised a court action, but if I do I will explain how I did it here.
I had a particular impression of the Guidance, and read it over again, carefully, in order to check. It often states alleged needs of others who might want trans people excluded. These include religous belief, dignity, privacy, preventing trauma, and health and safety. Establishing that need is as simple as asking a few cis people whether they want “men” in the “women’s” changing rooms. It only mentions the needs of trans people in a generalised way: service providers should consider the needs of trans people, but the guidance does not say what those needs are. Our needs might be met, they say, by a gender neutral space, or by sending us elsewhere. The only specific need it names that trans people have is the need for an opposite sex service, for example, a trans man needing breast screening. Therefore the guidance is deeply dehumanising, and denies the reality of our existence.
On Womens Hour this a.m. – Dreadful!
I can’t face listening to that now. I will listen later.
Clare, yet another excellent piece. Thanks for sharing your wisdom and humanity.
Kishwer Falkner, chair of the EHRC, was dreadful and struggled to be coherent in the interview with Emma Barnett. Whilst she denied it, she and her team are trying to rewrite the Equality Act, not offer objective guidance.
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Wow. Emma Barnett suggested they were trying to rewrite the Equality Act? Maybe I will listen.
Added: I listened. It’s here: from 17.20 on the download to 32.48, which may be longer than the original broadcast. It is horrible and misleading: Barnett and Falkner speak throughout as if “single-sex spaces” for women exclude trans women; there is some misleading stuff about GRCs; and the main line of questioning is around how can a woman complain if there’s someone in the changing rooms she does not think should be there. At the end there are tweets from listeners, and all but one read are self-righteously exclusionary. One says that this is not a trans rights issue and should be framed as Protecting Women. And the last read out is the only moment of sanity in the whole farrago: Dr Jess Langston says “I have a cis friend who has a hormonal issue and facial hair. Regularly accosted by people in the women’s toilets. She’s been shouted at, asked to prove her gender and asked to leave. How is this keeping women safe?”
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Sorry, I did not mean to imply that Emma Barnett suggested that the government is guilty of rewriting the Equality Act, that was just my interpretation of what Falkner said in the interview. I wanted Emma to push harder and from the perspective that the Equality Act already provides some protection for trans people, rather than going along with the claim by Falkner that the Act would benefit from the clarification provided by the guidelines on which her team have obviously worked so hard (I don’t think).
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Barnett’s perspective, whoever she interviews, is always shouting out for women’s rights excluding trans women. She thinks we are men, and feels no need to appear neutral or deny that. I had not seriously thought Barnett would give a credible interview.
My feelings on this is that if people do exclude trans-women it’s still almost impossible to enforce. And, of course, it will hit more cis women in ‘friendly fire’ incidents than trans-women in direct strikes – but that, of course, is part of the design here. Those who support this are using trans-women as a vector to control women and roll-back women’s rights as well. In that endeavour, GCs are the useful idiots – something they seem blinded to by their desire to see trans-women excluded and destroyed. No mention, whatever, of trans-men I note.
Thank you for continuing to provide such a valuable service in translating and summarising. At the risk of sounding ridiculoius (but meant with love): you are doing God’s work!
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As a Christian, I am happy to be told I am doing God’s work. And, yes, there are not many trans women, and far more cis women whom an eager transphobe might mistake. The EHRC guidance will encourage the policing of femininity and the victimisation of “mannish” women.
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