This is a reproduction of my response to the EHRC’s consultation on their proposed updates to the services Code of Practice, originally submitted via web form.
We have updated the legal definition of sex throughout the code of practice. Our previous definition explained that:
‘Legal sex is the sex that was recorded at your birth or the sex you have acquired by obtaining a Gender Recognition Certificate (GRC).’
Following the UK Supreme Court ruling in For Women Scotland, this definition is no longer accurate, because a GRC does not change your legal sex for the purposes of the Equality Act 2010. We have therefore updated this definition throughout the code to be:
‘Legal sex is the sex that was recorded at your birth.’
Strongly Disagree
You are correct in your explanation that the Supreme Court ruled in For Women Scotland that “a GRC does not change your legal sex for the purposes of the Equality Act 2010”. However, this does not mean that “legal sex is the sex that was recorded at your birth”, because, as you note, the scope of the ruling was limited to the Equality Act 2010. The Gender Recognition Act 2004 is quite clear that a trans woman’s “sex becomes that of a woman” “for all purposes” when a GRC is issued, unless specifically stated otherwise, such as (now) in the Equality Act 2010. A better definition, therefore, would be:
“Legal sex is the sex that was recorded at your birth for the purposes of the Equality Act 2010, and the sex that was recorded at your birth or the sex you have acquired by obtaining a Gender Recognition Certificate (GRC) for all other purposes.”
This content explains that the Supreme Court in For Women Scotland has ruled that a Gender Recognition Certificate (GRC) does not change a person’s legal sex for the purposes of the Equality Act 2010 (the Act). It also outlines what protections trans people have under the Act whether or not they have a GRC.
We have included paragraphs 2.1.1 to 2.1.5 for context for this change. We are looking for feedback only on paragraphs 2.1.6 to 2.1.9.
Strongly Disagree
2.1.7 – “biological sex” is an unclear term. There are many biological attributes of sex, such as chromosomes (which often do not match sex recorded at birth), hormones (which can be changed), and sex characteristics (which can be changed). A clearer wording would say “a person’s sex remains their sex recorded at birth”
2.1.8 – trans people will suffer significantly more discrimination due to this update to the code, because they will be forced to reveal their sex recorded at birth in many more situations, outing them as trans, and therefore enabling easier victimisation.
2.1.9 – “acquired gender” is irrelevant here. It is a technical legal term that only applies if the trans person has a GRC, but it is made clear that protection from discrimination is due to an association or perception with their lived sex, not the status of their GRC. Further, the Equality Act uses the word “sex”, not “gender”. It is legally equivalent to gender, but there is no reason to use “gender” here, all it does is obfuscate that trans people’s sex also changes (by GRC or by lived experience and perception), and not just their gender. A better term to use would be “lived sex”.
2.1.9 – How will protections against sex discrimination in a trans person’s lived sex be enforced, if it relies on the misogynist’s perception? Will a misogynist be able to say about a trans woman “I perceived her as a man”, and then be exempt from consequences?
This section gives information on how requests about sex at birth should be made. It outlines the circumstances in which making such requests, with or without evidential proof of birth sex, may be unlawful.
Strongly Disagree
2.2.1 – Why is a human rights organisation requiring service providers to impose a policy which it explicitly acknowledges is potentially distressing?
2.2.3/4. – these clauses are in direct conflict. It is acknowledged that it would be discrimination or harassment if individuals are required “to disclose this information in public”, and yet the obligations imposed by this guidance requires them to do so, by using single-sex services in their birth sex, revealing their birth sex. How can these two facts possibly be true at the same time?
2.2.5 – “Indirect discrimination could occur if a policy on how or when to ask for such information places some protected characteristic groups at a particular disadvantage”. Earlier, in 2.2.1, you stated “some people, including some trans or gender non-conforming people, may find it distressing to be asked about their birth sex”. In other words, people with the protected characteristic of gender reassignment are put a particular disadvantage by any policy that requires asking an individual their birth sex. So this is indirect discrimination.
2.2.6 – “A service provider may make a rule that if someone is asked their birth sex and chooses to answer objectively falsely it will be grounds for exclusion from the service.” How could you possibly know whether someone answered objectively falsely? Gender non-conforming people exist, as you acknowledge. This policy means targeting gender non-conforming people, because service provider employees are more likely to distrust their responses as to birth sex. What are gender non-conforming cis people supposed to do, carry around a birth certificate (which can be amended by GRC)?
2.2.7 – Again, “biological male” is extremely unclear, as biological characteristics like hormones and sex characteristics can be changed, while chromosomes do not always correspond to sex recorded at birth. This should be “thinks that the woman is trans”.
2.2.7 – What characteristics enable “reasonably thinking” someone’s sex recorded at birth was male? Facial hair, which many women and particularly black women have, causing indirect discrimination based on race? Height and build, which enormously varies and would discriminate against gender non-conforming cis women? There are no observable characteristics that can determine sex recorded at birth without discriminating against some groups.
2.2.7/8 Again, as above, this targets gender non-conforming cis people as well, and it is unreasonable to expect them to carry around a birth certificate. What will happen when the birth certificate is not trusted, and a GRC is asked for? And the gender non-conforming cis person can’t produce one? It would be illegal for any other party to disclose a person’s GRC status to the service provider, as per the GRA2004 and as you note.
2.2.8/9 – Who will ask? Junior reception staff? And be placed at risk of criminal offense if they accidentally reveal the information? Who will want to place themself at that risk, rather than simply trust the person’s initial statement about their birth sex? Will they have the training to ask in a “proportionate way which is discreet and sensitive”? Where and when will people be asked? Will there be sex police outside all bathrooms, transvestigating every customer? This is an enormous burden to be placing on service providers.
This content defines ‘sex’, ‘man’ and ‘woman’, and explains how a GRC does not change a person’s legal sex for the purposes of the Equality Act 2010.
Strongly Disagree
2.3.2 – Once again, “biological sex” is an unclear term, because biological characteristics like hormones and sex characteristics can be changed, and chromosomes often do not match the sex recorded at birth. This should simply say “ruled that ‘sex’, ‘woman’ and ‘man’ in the Act refer to the sex recorded at birth of a person”.
2.3.5 – What about the treatment of a trans woman when she is breastfeeding? Does she simply not have any protections or provisions?
2.3.5 – It is not clear from this that trans men are also included in protections based on pregnancy or giving birth. Why does this section not simply say “There are specific provisions which apply to protect from discrimination any person who becomes pregnant, gives birth, or breastfeeds, whether or not they are trans”.
We updated our description of sexual orientation. Our description now specifies that a person who is attracted to people of the same sex is either a lesbian woman or a gay man. The full description is as follows.
Sexual orientation is a protected characteristic (s.12(1)). It means a person’s sexual orientation towards:
- persons of the same sex (the person is a lesbian woman or a gay man)
- persons of the opposite sex (the person is heterosexual), or
- persons of either sex (the person is bisexual)
Strongly Disagree
2.4.1 – It is absurd that this guidance attempts to define “lesbian woman” or “gay man” differently from how actual lesbian women and gay men define themselves. Cis lesbians are consistently shown by statistics to be the group most supportive of trans people, including of trans women defining themselves as lesbians, and the vast majority of cis lesbians are attracted to trans women. Would this guidance deny cis lesbians the right to call themselves lesbians, referring to them only as “bisexual”, because they are attracted to trans women? (The same question applies in reverse to gay men). The EHRC simply has no right to speak over actual gay and lesbian people in defining their own labels.
2.4.3 – What will happen to two married lesbians, one of whom is trans? Will the law simply treat their marriage as heterosexual, denying them protections based on sexual orientation?
2.4.6 – Why does this statement attempt to divide queer (LGBTQ+) people, when we have such a shared history, shared struggle, and shared experience of being discriminated against due to gendered expectations? This should simply say, “Gender reassignment is treated as a separate protected characteristic in the Act from sexual orientation, although the two are very closely related and often grouped together (for example under the acronym ‘LGBTQ+ people’)”
This example explains how discrimination can occur based on a perceived protected characteristic, in the context of sex and gender reassignment.
Strongly Disagree
The guidance ignores that as a consequence of it, trans people are now much more vulnerable to sex discrimination than they were before, because they now have no legal mechanism by which to access the full range of sex discrimination protections in their lived sex. For example, it is now incredibly easy to be misogynistic to a trans woman, and then simply say, “I perceived her as man” when challenged. It is absurd for the hypothetical Chairman in 4.1.3 to simply tell her that they want a man – this is a gross misrepresentation of how real misogynistic hiring is done, and pretends that it would be easy for a trans woman to prove she was perceived as a woman, when in reality this would be extremely difficult.
We removed content that explained that, for trans men holding a gender recognition certificate (GRC), the protection from pregnancy and maternity discrimination under the Equality Act 2010 (the Act) arose from case law. This case law set out that trans men were still protected irrespective of them having a GRC that stated that their legal sex was male. Following the For Women Scotland ruling, their legal sex is now female for the purposes of the Act, and they therefore have protection on that basis.
Strongly Disagree
It must be clearly stated that trans women are still afforded protections based on breastfeeding, and that non-binary people capable of giving birth are still given these protections.
This example explains how indirect sex discrimination can occur when people experience the same disadvantage, even if they do not share the same protected characteristic. The example is in the context of sex and gender reassignment.
No
We produced a new example to explain how harassment can occur based on a perceived protected characteristic, in the context of sex and gender reassignment.
We have included additional information to provide context for this example. We are only looking for feedback on the example in paragraph 8.1.6b.
Strongly Disagree
It must be explicitly stated that repeated and unwanted misgendering of a trans person will still be considered potential harassment as it currently is under the 2011 Code of Practice.
The example in this section explains when applications to an association can be lawfully refused based on a protected characteristic, in the context of sex and gender reassignment.
We have included additional information to provide context for this example. We are only looking for feedback on the example in paragraph 12.1.3.
Strongly Disagree
It is not explained how to operate women-only/lesbian-only/etc club or association in a trans inclusive way. This must be explained.
Not having any ability to do so would interfere with the right to freedom of association.
How exactly are the people who run these associations expected to identify trans applicants ‘in a sensitive way which does not cause discrimination or harassment’ and without breaching privacy rights? It is impossible to do so without interfering with the strict privacy safeguards that a GRC is given.
This section has been updated to explain the circumstances in which it may be lawful to exclude participation in competitive sporting events in relation to the protected characteristics of sex and gender reassignment. It also sets out considerations that should factor into policy decisions regarding the exclusion of trans people from competitive sporting events.
Strongly Disagree
It is not explained how a sporting event can be voluntarily operated in a trans inclusive way, or how they can base their legal discrimination based on their own metrics, such as hormonal history, as sporting regulators currently do. This must be explained.
It is also not clarified that these provisions only apply to competitive sports and activities, and not non-competitive ones.
How exactly are sporting regulators expected to identify trans competitors in a sensitive way which does not cause discrimination or harassment and without breaching privacy rights? It is impossible to do so without interfering with the strict privacy safeguards that a GRC is given.
This section has been updated to provide guidance on how separate or single-sex services can be provided for men and women. It also sets out when providing these services is likely to be lawful.
Strongly Disagree
13.2.15 – “A support unit for women who have experienced domestic or sexual violence can be established, even if there is no men’s unit established”. Trans women experience very high rates of domestic and sexual violence, significantly higher than cis women. Where will they go in this scenario? Will they simply be abandoned to their abusers? Should it not be clarified that trans women can also be supported by this unit, even if cis men are not permitted?
Even if a men’s support group exists, trans women who are survivors of abuse from men are very unlikely to feel safe in such support units, for exactly the same reasons as cis women. So they won’t go. What will happen when to them they have no safe support group to turn to?
This section sets out the considerations that should be given to all potential service users when deciding whether separate and single-sex services are a proportionate means of achieving a legitimate aim. It also sets out circumstances in which mixed-sex services may be necessary, and the potential legal implications of providing only mixed-sex services.
Strongly Disagree
This section only focuses on how to exclude trans people from services, not on how to include them. It seems to create a situation where service providers are at risk of acting unlawfully, no matter what they do. If they operate services based on sex registered at birth, they are at risk of indirect discrimination against trans people, because trans people “are likely to be disadvantaged by this, by comparison to those who are not trans.” (13.3.7). If they wish to operate based on self-identified sex or gender, apparently this “is very likely to amount to unlawful sex discrimination against the people of the opposite sex who are not allowed to use it”. (13.3.19) If they wish to operate in a mixed-sex way, they are in danger of acting unlawfully in the form of sex discrimination against women. (13.3.20) So what are they supposed to do? Choose one form of discrimination risk over another?
This guidance will lead to an increase in informal policing of single-sex spaces and services. Women and men, cis or trans, will be harassed, thrown out, or worse, in single-sex facilities, because someone thinks they “look trans”. This disproportionately impacts not just trans people, but also gender non-conforming cis people, and racial minority women.
This new content explains that service providers may need to develop policies regarding the provision of separate or single-sex services. It also covers specific circumstances that may require a different approach to that set out in policy, and examples of those circumstances.
Strongly Disagree
Why can such “policies and exceptions” be used to include people of the “opposite sex” in single sex services sometimes, but never to allow the inclusion of trans women in women’s services, or trans men in men’s services?
The Code indicates it is likely to be lawful to include an accompanied male child in a women’s changing room because he does not pose a safety risk. Given this, why can trans women not be similarly included, given that there is no evidence that their inclusion poses a safety risk either? Trans women have been using gender-aligned services with the support of the law for decades and there is no evidence of an increased safety risk from this practice.
Why has the EHRC, as an organisation tasked to uphold the dignity, safety and privacy of everyone (including trans people), ignored the possibility of using this ‘flexibility’ to suitably accommodate trans people according to their lived sex and gender?
This section explains that service providers should consider their approach to trans people’s use of their services when deciding whether to provide a separate or single-sex service. It includes examples of relevant considerations when deciding whether the exclusion of trans people from a separate or single-sex service is a proportionate means of achieving a legitimate aim.
Strongly Disagree
How can it possibly be good policy to allow trans people to be potentially banned from both male and female services? What will trans people do? Take the place of people who need to use accessible facilities?
How can a human rights body use the words “distress” and “alarm” like this, feeding a discriminatory narrative of trans people being dangerous and threatening? Is this not exactly the same rhetoric that was once used in an attempt to ban gay men from male spaces, or lesbians from women’s spaces, simply because they cause “distress” and “alarm”?
Advising that service providers take decisions about excluding trans people based only on a subjective test, related largely to appearance, will increase the discrimination and harassment that trans people face, and potentially put both trans and cis people in humiliating and offensive situations.
The EHRC mentions that it won’t be ‘proportionate’ to leave trans people without a service that ‘everybody needs’ such as toilets. Does this mean sometimes it is ‘proportionate’ to leave trans people without a service?
Uncertainty about whether someone’s sex recorded at birth is ‘correct’ will increase the risk of delay or even denial of critical services such as hospital wards for those perceived as trans.
This part of the guidance as a whole undermines the purpose of the Equality and Human Rights Commission – which has legal duties to promote equality, diversity and human rights across society, including for trans people.
This content explains the application of the Act to communal accommodation in respect of the protected characteristics of sex and gender reassignment.
No
This guidance goes much further to exclude trans people than necessary after the Supreme Court decision in For Women Scotland, creating an enormous legal minefield for service providers where suddenly they are required to be act with suspicion about any and every person, and become their judge, jury, and executioner for access to services, even ones as ubiquitous as bathrooms or as urgently life saving as hospitals. It requires front-line service workers to take on enormous legal responsibility by obtaining information about whether someone has a GRC (itself constituting a privacy breach in violation of the Gender Recognition Act 2004), directly breaches the Article 8 ECHR privacy rights of trans people by forcing them to disclose their sex registered at birth whenever accessing a single-sex facility (despite noting that disclosing an individual’s sex recorded at birth is illegal), creates a situation where trans people can be excluded from spaces simply because their existence provokes “distress” and “alarm” (in striking parallels to attempts previously made against lesbian and gay people). It forces both trans and cis people in humiliating and offensive situations. It provides no guidance whatsoever on how service providers can voluntarily include trans people according to their lived sex, while still excluding other people with the same sex recorded at birth.
All in all, this new guidance is completely unworkable, and results in far less “clarity”, and far less of either equality or human rights, than we have in the current statutory guidance.