The EHRC trans code explained

What does it say, how will it work, and what happens next?

Photo by Markus Spiske on Unsplash

Mary-Ann Stephenson looked like she was coming apart on an atomic level. The new chair of the Equality and Human Rights Commission (EHRC) was speaking to MPs on the women and equalities committee last week, which is an ordeal at the best of times. On this day, it seemed as if it had extracted her will to live.

It was possible to feel really quite sorry for her. She is not vindictive. Unlike her immediate predecessor, Baroness Falkner, she is not witless or incompetent. She had not created this situation and she was not its author. But sympathy only takes you so far. The basic reality is that the EHRC and the government have presided over a profound failure of political leadership. Business owners and managers across the country have been left exposed to legal challenge, without any meaningful guidance from the authorities.

Who knows what form that challenge will take? Perhaps it’ll come from a trans person using European human rights law. Perhaps it’ll come from a gender critical campaigner using domestic law. There is no safe route, whatever you do. There is certainly no safe way to provide a trans-inclusive service. But there is also no safe way to provide a trans exclusive service, particularly if it’s a necessary service.

Those legal claims will come. And someone - a cafe owner, or a hospital manager, or someone who runs a local library, or the owner of a regional swimming pool - will be punished for something they could not have controlled. They will have been utterly failed by the political class.

Stephenson was asked how the EHRC’s updated code, packed with new guidance on trans people, would make people’s lives better.

She could not answer this question, but she marched her way valiantly through a series of words in the desperate hope that they might reveal a clearing. “It sets out clearly what the law says,” she said, “it gives examples of how you can deliver the law in practice in a way that protects the rights of everybody, and so it helps both service provider - people running clubs and associations, public functions - understand what their obligations are. It also should help members of the public understand what they could expect and what is reasonable to ask for”.

In fact, every single part of that statement is wrong. It does not set out what the law says, it is not clear, it does not allow you to deliver the law in a way that protects everyone, it does not help service providers and it does not inform members of the public. The code is a labyrinth of nonsense, an unworkable, illogical, irrational, hopelessly befuddled mess of competing urges, moral panic and institutionalised anxiety. It is a bramble of contradictory propositions which eventually dissolves into nothing.

For this piece, I have spoken to several senior discrimination lawyers and experts, who have sat in a state of perplexed bemusement trying to understand what it is saying. In many cases, these are top-drawer silks, with decades of experience. No normal person could read it and understand what they are expected to do.

This piece attempts to dig into what the guidance means. It is about many things. It is about the rights of trans people. It is about a failure of political leadership. But ultimately it is about a country where basic legal standards are decomposing. Someone should be able to articulate precisely what the law is and know whether they are abiding by it. That is not the case here. And the fact that it isn’t points to a vast constitutional failure which is at least as large as our moral failure.

The road to the code

The story starts with the Equality Act, a massive piece of legislation which protects people against discrimination. Or rather, it starts with an exception in the Equality Act. That’s where this whole thing plays out, as an exception within an exception, dancing between legislative raindrops. But then, that’s the kind of place where people’s lives are crushed: in the small print.

The Equality Act allows you to discriminate. That’s how we have separate male and female changing rooms, or how we can form associations for Muslim women, or representative bodies for the British Chinese. The details of how you can discriminate vary, but the principle is always the same. It’s laid out in paragraph 26 of Schedule 3. It must be a “proportionate means of achieving a legitimate aim”.

Until the Supreme Court judgment, everyone had always assumed that single sex spaces by default included trans people in their acquired gender. Trans women were free to enter women-only spaces and trans men were free to enter men only spaces.

This was not carte blanche. You could still discriminate against trans people if you wanted to. You just had to demonstrate that it was a proportionate means of achieving a legitimate aim. This is why there were some rape crisis centres which excluded trans women.

This was not universally understood, to put it mildly. Gender critical campaign groups claimed that trans people could enter wherever they liked. This was not true and never had been. In reality, we had a perfectly workable and common sense system where individual cases of trans exclusion could be considered on their own terms.

In toilets, where there is no sound empirical ground for excluding trans people, it was not proportionate or legitimate. In prisons, where some trans inmates have been convicted of sexual assault, it often was. In rape crisis centres, where someone in a very traumatised state could feel acutely vulnerable around people who were born male, it also may be. It all depended on the context and the specifics of the case. But that is how equality law operates. It is not really about blanket provisions. It is about individual cases.

This pragmatic, case-by-case approach was destroyed in the wake of the Supreme Court case. It ruled that for the purposes of the Equality Act, the word man always meant ‘biological man’ and the word female always meant biological female. For the purpose of the Equality Act, trans women were men and trans men were women.

From that point on, things were always going to be bad. A benign British muddle had been replaced by the severe imposition of brute categories. It was no longer possible for everyone to just bumble along pleasantly. We were now in the business of imposing razor-sharp decisions on people about their identity on a daily basis in the most rudimentary settings.

The EHRC has now updated the statutory code of practice with its interpretation of the Supreme Court ruling. This is a 340 page guidebook telling businesses and public services how to interpret equality provisions. It is not the law. It is a guide for service providers. But it is tremendously influential and probably the single most important document in this space other than the Equality Act itself. This was then sent to the relevant minister - Bridget Phillipson - and was eventually published last month.

The core argument of the EHRC is that it is no longer possible to include trans people in single sex settings according to their acquired gender.

You basically have two choices. You can introduce mixed sex services, or you can maintain single sex provision and exclude trans people. What you cannot do is include them in single sex provision. As John Kirkpatrick, chief executive of the EHRC, told MPs: “Most people will, presumably correctly, take from the code the sense that where you’re trying to establish and maintain a single sex service that single sex service must be established and maintained on a biological sex basis. That’s at the core of this.”

If you want to follow along, you can find the code here. Think of it like a choose-your-own-adventure story from hell. I’ll mention the section I’m talking about each time.

The core idea in the code is found in section 13.130:

“If a service provider… admits trans people to a service intended for the opposite sex, then it can no longer rely on the exceptions set out at paragraphs 13.99 to 13.111 [on when you can legitimately discriminate]. This means that if a service is provided only to women and trans women or only to men and trans men, it is not a separate-sex or single-sex service under the Equality Act 2010.”

In the EHRC view, this follows logically from the court judgment. A trans woman is in fact a man. You have a woman-only space. Their entry into that space necessarily breaks that rule. You can therefore either exclude them or turn it into a mixed sex space and include all other men as well. It’s as simple as that.

The good (kinda)

There are a couple of positive developments in the code. The first is that associations will be free to accept trans members.

Until now, it was unclear if this was even possible. Last year, women’s committee chair Sarah Owen asked the former EHRC chair, Baroness Falkner, whether a women’s walking group could admit trans women. She said no. The only way they could do it is if they gave up on being a women’s walking group and admitted men too. At this point really elementary liberal principles were dissolving. This was a massive and blatant violation of freedom of association.

That position has now changed. Section 12.75 of the code states that an association can restrict membership to people who share more than one protected characteristic. So, to use the example in the text, they can restrict a group to just women (one protected characteristic) or to Muslim women (two protected characteristics). That means that an association can therefore restrict its membership to women and also include trans people as a second protected characteristic.

It’s interesting to note that even here, where the EHRC is clearly moderating its position, it cannot quite bring itself to say so. Where trans people are to be excluded from a space, the code is explicit and clear cut. But where they can be included it is suddenly strangely mute. It reveals the possibility of inclusion tacitly, by inference.

That’s important for several reasons. First, because it offers us a glimpse of the emotional space of the EHRC. They are averse to acknowledging that which helps trans people and enthusiastic about highlighting that which restricts them. Second, it shows that there were opportunities here to reassure trans people and provide a balanced assessment of the law, but that this opportunity was pointedly and repeatedly dismissed. And finally, it’s important because the public is expected to read this code and base their decisions on it. The obvious intention is to discourage trans inclusion and encourage trans exclusion.

You can see a similar pattern when it comes to policing toilets. Until recently, the EHRC basically wanted people to become personal genital inspectors, with sports clubs and hospitals being told they should ask for someone’s birth certificate if they had concerns. I know this sounds insane, but it’s where we are now. The debate has spiralled into extreme propositions without any real mainstream check on its wilder imagination.

You get the sense that the EHRC rather wanted to keep this in place but couldn’t quite find a way to do it. So 13.160 says that “there are limited circumstances… where asking an individual about their protected characteristic in the provision of services may be warranted”. 13.161 admits that some trans people “may find it distressing” but 13.168 insists that where there is “clear evidence” of a member of the opposite sex using a service, “it may be legitimate to ask individuals to provide confirmation that they are of the eligible sex by proportionate means”.

Reality only hits with 13.179. “There is no type of official record or document in the UK which provides reliable evidence of sex,” the EHRC concedes. “Therefore, it is unlikely to be proportionate or practical to ask for further evidence of a person’s sex.” So: No toilet policing. One of the great dreams of the anti-trans movement, that we should all have our genitals checked before we go for a wee, fades into history.

The bad (definitely)

The EHRC has repeatedly stated that it is not responsible for the law. All it is doing is relaying what the Supreme Court already decided. “What we set out in the code is not us making the law,” Stephenson told the women’s committee. “It is us explaining to people what the law requires.”

This is not correct. In fact, the code is an act of interpretation of the law and of the Supreme Court ruling.

For instance, at 13.136 the code states what would happen if a woman brought her ten-year-old son into a female changing room at a swimming pool. “This does not undermine the aim” of the single sex space, it concludes, “because it is unlikely that young boys pose a threat to women’s safety.”

You could just as easily argue that trans women do not pose a threat to women’s safety, but put that aside for a moment. The core issue here is that the EHRC is not just translating the law. It is interpreting it, in really quite broad and far-reaching terms.

At the women’s committee, Labour MP Peter Swallow mentioned this example to EHRC chief executive John Kirkpatrick. The code says a ten-year-old boy is an acceptable exception to single sex provision. So where do the exceptions end? “Ultimately the law determines where the exceptions end,” Kirkpatrick replied. Swallow furrowed his brow. “Where in the law,” he asked, does it allow for that exception?”

Kirkpatrick was silent for a moment. He knew he was in trouble. Then he said something revealing: “I think we think that that exception is capable of being defended and justified in law”.

First of all, I think we should offer some special praise for “I think we think”, which is a pretty perfect distillation of the way people speak in the upper echelons of the civil service. Second, notice the way that Kirkpatrick gave the game away there. It was an admission, even if he didn’t realise it or chose not to acknowledge it. The EHRC is not just copying law into a code. It is providing an interpretation of what it thinks the law is. It could have gone for a nice pleasant Adam West interpretation of the source material, but instead it went for the grim dark Christian Bale version.

Take for example the EHRC’s insistence that you must exclude trans women from women’s toilets.

Let’s say that I buy a pub and I want to have trans inclusive single-sex toilets. According to the Equality Act, I am now allowing men into the women’s toilets. The EHRC says that I will be vulnerable to several legal challenges. One of these is found at 13.131, which states that I could be sued by a cis-gendered man. He could claim that he is being discriminated against, because trans men are allowed in and he is not.

In reality, the legal basis for this claim is highly contested. It is not legal fact at all. It may not even be true.

In 1996, a bloke called Mr Smith was working in a Supermarket delicatessen called Safeway. He objected to the fact that there were different rules on the appearance of male and female employees. His ponytail contravened a rule that men should not have “unconventional hair styles” or hair “below shirt collar length”. He claimed sex discrimination - women were allowed ponytails and below collar-length hair, so why shouldn’t men be?

He lost. The industrial tribunal rejected his claim and the ruling was upheld in the Court of Appeal.

The tribunal ruled that insisting on a conventional appearance for both sexes was perfectly acceptable and this would naturally result in different rules, because men and women have different conventional appearances. The core principle was that different provision is fine, as long as it is not less favourable.

This same rule is likely to apply to a cis man’s access to toilets in a trans inclusive space. The cis man has different provision, sure, but it is not less favourable. He can take a piss and so can everyone else.

Last year, the Good Law Project tried and failed to challenge the EHRC guidance. You can read the full ruling here. Because they lost the case, no-one paid much attention to what the judge said outside of the fact he ruled against them. But there was actually a crucial argument that he did not reject. It was this specific point concerning Smith vs Safeway.

The judge said:

“In a case where the provision of separate lavatories labelled male and female was materially similar in terms of the extent of the provision, location, and so on, I consider there would, in principle, be scope for a strong argument that a rule or practice that permitted trans women to use the ‘female’ lavatory but required other biological men to use the male lavatory would comprise different but not less favourable treatment on grounds of sex.”

To be clear, a different judge could come to a different conclusion. He was very clear that the ruling would depend on the circumstances of the case. But this is the opposite view to the one put forward by the EHRC. It shows just how different interpretations of the law can be and how remorselessly draconian - and political - the EHRC’s has become.

It also demonstrates the reality of where we are now. The practical implications of the Supreme Court ruling will not be clear until they are tested in court.

What does the EHRC advise people to do? The guidance, in so far as it can be discerned, is expressed at 13.123. Ideally you should provide male toilets, female toilets and mixed-sex toilets, with the last ones being used by trans people. This is because trans people are actually protected in the Equality Act and must have access to essential services, like toilets.

As an example, the code speaks about a shopping centre, a large well-funded space, which provides only single-sex toilets. “This disadvantages trans people because it means that a trans person cannot access a toilet catered towards their acquired gender.” So they need three options.

Many places - cafes, bars, whatever - will not have the space for that. Or they won’t have the money to build it. What then? Ultimately the EHRC isn’t really sure. The next example in the Code, at 13.124, says that a small advice centre should have a men’s toilet, a women’s toilet, and an accessible toilet which can be used by trans people. So basically trans people should use the disabled loos.

This is not always possible. Labour MP Rachel Taylor spoke with a trans woman who worked as an HGV driver. She said that there were often no mixed shower facilities at motorway service stations, because there was very little provision for disabled people. Was it proportionate to stop her using the women’s facilities?

Stephenson struggled to answer. She obviously could not say that it was, but she was unable to state clearly that wasn’t. Any remaining avenues of logic had been closed off to her. “Well it depends,” she said, “I mean what we would say is we are not expecting service providers to be standing guard over facilities. We are expecting them to respond if there are complaints or if there is an ongoing problem.”

Taylor was unimpressed. “You can’t say if it’s proportionate so I’ll move on,” she replied.

The same applies to really difficult situations like hospital wards. This is the sharp end of things. One of the most impressive MPs on the women’s committee was Labour MP Kevin McKenna, who had previously worked as a nurse. He started to ask the EHRC representatives a series of detailed questions to which they did not know the answer.

“Let’s say you have a male and female oncology ward,” he said. “What would alternative provision look like?”

“It might be a side room,” Stephenson replied, “it might be… it depends on the treatment, it depends on the service for example”. This was dispiriting. She could not even describe how a hospital ward was supposed to work. Once specific examples arose, the code seemed to collapse in on itself, buried under its own generalisations.

McKenna outlined the practical limitation on an overstretched and underfunded health service. “It’s not just the cost,” he said. “When you’ve only got so many staff to deliver a service, when you’ve only got so many people who are expert in a particular condition, I think a lot of this stuff is going to really struggle when it comes into contact with reality.”

In fact, the situation could be much more serious than that. What happens when a female trans patient is blue-lighted into hospital in an emergency? She can’t be admitted into the women’s ward. She won’t go to the men’s ward. So she’ll be sat in A&E for longer, accommodated eventually in a side room, held back from treatment. And once she’s in that side room, what happens? She will displace the people who are supposed to be there for clinical reasons - because they have a high infection risk, say, or have a compromised immune system. Trans people will be delayed and cared for away from the specialist ward. Cis people will be deprived of the spaces they need for clinical reasons.

Who wins? Nobody. Nobody at all. None of this has any meaning whatsoever. It is just a needless act of administrative bother and political self-harm.

The coming storm

What will happen in the real world? Three things. First, I suspect many establishments will decide to have mixed-sex toilets. Why not? It’s the safest possible path. It is a one-step decision which closes down all sorts of possible lawsuits. If I was a business owner it’s what I would do.

The EHRC comes close to suggesting it itself. At 13.113 and 13.116 it says that a service provider who only provides mixed-sex spaces would be open to a discrimination challenge if women are in a state of undress, or they have limited options for another service, or the service is connected to violence against women. These scenarios relate potentially to changing rooms, but they do not relate to toilets. Then at 13.143 it says: “The impact of separate or single-sex services on trans people should be considered when the service provider is deciding whether it is justified to have a separate or single-sex service.”

Again, you have to decode it. But taken in combination the direction of travel is pretty clear: The safest thing for a service provider to do is to provide mixed-sex loos.

Of course, this is an absurd endpoint. The gender critical activists wanted trans women excluded from women’s toilets because they were supposedly a threat to women. They’re going to absolutely blow their top when they find out that the result of their legal victory is to eradicate many women’s spaces altogether. But this seems a likely outcome.

Second, disabled people are going to be hopelessly inconvenienced. The obvious choice for many cash-strapped, space-limited businesses is to use the disabled toilet as a mixed-sex toilet. The impact will be severe. Disabled people’s spaces, which are already woefully inadequate in many places, should not be treated as a dumping ground for other groups which society now finds inconvenient. But of course, no-one gives a damn. Anything is worth it in the battle against woke.

Third, where these options are not possible, people will institute a policy of don’t-ask-don’t-tell. Then they’ll just hope that some gender critical types don’t come into their pub one day and sue them, or march around their clothes shop filming staff and shouting about why the changing rooms are not segregated. The operating principle will probably be: ask no questions and hope for the best.

What comes next politically?

The code cannot realistically be defeated in parliament. It is a kind of statutory instrument, which is basically impossible to stop. You can read the details here if you like. It is an insult to parliament and the free society that we implement major changes affecting minority groups this way, but there we are.

It does not mean that the government will get away with it. The really basic problem with the EHRC guidance is that it’ll very likely to fall foul of the European Court of Human Rights. And that is what is likely to come next.

One of the reasons the British government first brought in the Gender Recognition Act was because it lost a 2002 case in Strasbourg known as Goodwin vs the United Kingdom.

Paragraph 90 of that case makes it clear that transgender people should not be treated as a third sex, by placing them in an intermediary zone. That’s not what they are. They are people who should be treated as their acquired sex. It’s actually a rather beautiful passage, if you’re into that sort of thing.

“The very essence of the Convention is respect for human dignity and human freedom. Under Article 8 of the Convention in particular, where the notion of personal autonomy is an important principle underlying the interpretation of its guarantees, protection is given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings... In short, the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable.”

This has been confirmed several times since then, in European and domestic law. Lady Hale, of spider-woman prorogation fame, stated in the the case of R (C) v Secretary of State for Work and Pensions, at paragraph 29:

“This puts it beyond doubt that the way in which the law and officialdom treat people who have undergone gender reassignment is no trivial matter. It has a serious impact upon their need, and their right, to live, not as a member of a ‘third sex’, but as the person they have become, as fully a man or fully a woman as the case may be.”

It’s impossible to see how the EHRC guidance conforms to this principle. Sections 13.124, 13.138 and 13.148 all place trans people in a kind of intermediate zone because they advocate the use of a third toilet, with mixed-sex provision, as a solution. But really the whole guidance is defined by this approach.

This all leads to a disastrous political outcome for the government. It suggests a human rights case on Article 8 rights, which it will lose, followed perhaps by a ruling in Strasbourg, which it will also lose, all just in time to coincide with the next general election.

All of that is preventable. None of it has to happen. But what is required, as ever, is the one commodity that we do not seem to possess, which is courage. Politicians need to show they have the conviction to grapple with this issue. No-one else can do it really: not the courts, not the EHRC, not the campaigners on either side.

They will be despised for it, by both sides, for the compromises which will invariably need to be made. But that is what politicians are for: grappling with the difficult issues. Instead modern politicians flee from them.

You can see the end result in front of you. A minority group which is attacked daily by the massed forces of the press, with barely any defenders in government to stand by their side. Business owners and managers left with no certainty about how they can avoid a ruinous legal challenge. And the very principle of certainty in law dissolving under our feet, corroded by the failure of a political class to show basic leadership.