THE UK equalities watchdog’s code of practice, which would introduce “segregation” for transgender people, has ended its 40-day scrutiny period – so what happens next?
On May 21, the Equality and Human Rights Commission (EHRC) published its updated guidance, which will ban transgender women from using female toilets, changing facilities and sports teams.
The long-awaited and repeatedly delayed code was revised in response to the Supreme Court ruling in April last year that said a woman is defined by biological sex under the Equality Act 2010.
It now states that single-sex services must be provided on the basis of biological sex, or they will not qualify as single-sex.
The guidance is for businesses and public bodies on how to operate under the law. It excludes transgender women from female facilities and transgender men from male facilities.
Advocacy groups have argued that this leaves trans people in the UK with "less rights".
The guidance states that in relation to the Equality Act, "a person’s sex remains their biological sex, whether they have a GRC [gender recognition certificate] or not".
"For example, a trans man with a GRC is a woman and a trans woman with a GRC is a man, for the purposes of the act," it states.
The guidance also suggests that in some circumstances it could be deemed legitimate for service providers to ask someone to confirm what their sex is.
They say this is if “there is clear evidence of an issue with members of the opposite sex accessing or seeking to access the single or separate-sex service or association”.
More than 160 MPs have signed an early day motion in the House of Commons seeking to stop the code from coming into force.
What happens next?
Now that the code has been laid in the UK Parliament for 40 days, the EHRC will issue it and then Women and Equalities Minister Bridget Phillipson must lay a statutory instrument to revoke the 2011 code.
Phillipson must then issue a new statutory instrument – a form of secondary legislation used by the UK Government to update existing laws or bring Acts of Parliament into force – to bring in the new EHRC code.
Once the statutory instrument that revokes the code is laid, it will come into force 22 days later.
The National understands that Phillipson has not yet taken a decision on when this will be done.
This means there is not a confirmed date for the code becoming law, because it depends on when the statutory instrument is laid in parliament.
The next Westminster recess begins on Friday, July 17.
If it is not laid before that date, then the UK Parliament does not reconvene until Tuesday, September 1.
What concerns about the EHRC code have been raised?
There have been various concerns raised about the code of practice, with even the
OEO additional impact assessment published alongside it noted a number of issues.
It said there is a risk of “double exclusion” as trans people could be barred from facilities with their aligned gender, due to their sex, or the facility their birth sex, because they possess the protected characteristic of gender reassignment, leaving them with “no service at all”.
There were also concerns that transgender people could be outed by using disabled toilets, or forced to disclose their birth sex in public or professional settings.
The impact assessment also noted that there was a potential for gender policing, increased harassment of transgender people and those who do not conform to traditional gender stereotypes. It also noted that trans women excluded from female bathrooms having to use male bathrooms could face a “disproportionate risk of violence and sexual assault”.
In a joint statement published when the 40-day scrutiny period ended on Friday, Scottish Trans, Trans+ Solidarity Alliance and TransActual said that the code does “not work in reality”.
“It does not protect trans people, it does not help service providers, and it will not uphold human rights,” the groups said.
“The problem now is legislative; the legal framework is fundamentally broken – and the huge backlash you have driven against the Code of Practice opens up a vital sliver of hope for a better future in UK law. This is far from over.”
The statement added: “Today is a low point in LGBT+ history in this country, but history is still being made.
“Trans people aren’t going anywhere, and we will keep fighting for a better world.”
The Scottish Greens have also urged Westminster to stop the code from coming into force.
Equalities spokesperson Kate Nevens said: "This guidance is authoritarian and cruel and cements exclusion and segregation.
“It will cause real harm to trans people who have accessed these spaces and services for years without incident.”
What does the UK Government say?
A UK Government spokesperson told The National: "There are laws in place to protect trans people from discrimination and harassment which we will protect and uphold.
"The UK proudly upholds a robust legislative framework to protect LGBT+ people.
“We have strengthened protections for trans people against hate crime and pushed forward with our trans-inclusive conversion practices ban, as well as promoting LGBT+ rights internationally and improving LGBT+ healthcare.”
