Labour MP for Nottingham East Nadia Whittome discusses the Government's latest guidance on single sex spaces
In recent years, trans people in the UK have faced a sustained and coordinated attack on their rights. Since last year’s landmark Supreme Court judgement, which ruled that the legal definition of ‘sex’ in the Equality Act is based on ‘biological sex’ (by which they mean the sex recorded at birth). These attacks have gained ammunition, with trans women facing exclusion from women’s spaces, and trans men from men’s spaces.
The Equality and Human Rights Commission (EHRC) is the UK’s equalities watchdog, responsible for translating equality law into practical written guidelines for organisations and service providers. Its latest guidance, the Draft Code of Practice for services, public functions and associations, laid before Parliament on 21 May, sets out what the Supreme Court’s judgment looks like in practice. I believe that the judgment, and the EHRC’s hardline interpretation, have resulted in rules that are contradictory, unworkable and harmful for trans people.
The Code states that if an organisation chooses to include trans people in their services, those services can no longer be described as single-sex.
The Code also says that trans people should not be allowed to use facilities, such as toilets and changing rooms, for the gender they live as, and in some cases also for their biological sex. Instead, trans people are being told to use alternative provisions. Not only do such ‘third spaces’ enforce segregation and risk outing trans people, there is also no clear answer to what happens when they don’t exist. While the Code expects service providers to consider alternative provisions, there is no requirement to provide them, meaning trans people risk being denied access to everyday services with nowhere else to turn.
The Code does provide some guidance to membership associations, such as women’s groups, on how they can remain trans-inclusive, but it fails to offer clarity and confidence to service providers seeking to do the same. As a result, these guidelines will exclude trans people from services and facilities that they have used without issue for a very long time, putting them (and anyone perceived as trans) at increased risk of discrimination, harassment and violence.
The government’s own equality impact assessment of the Code acknowledges that the impact on trans people will likely be wide-ranging and negative, and that trans women could face ‘disproportionate risk of violence and sexual assault’. The assessment also warns that ‘women who are considered masculine may face greater scrutiny’, and that disabled people will face adverse impacts.
The Code ushers in an era of enforced segregation for trans people, and the responsibility for enforcing this will fall on everyday organisations, such as businesses, charities and public bodies. They will be expected to make judgments about people’s biological sex based on, in the Code’s own words, “the individual’s physique or physical appearance, behaviour or concerns raised by other service users”. Given that there is no reliable or dignified way to determine someone’s biological sex from appearance alone, these judgments will likely heavily rely on gender stereotypes.
In a recent session of the Women and Equalities Select Committee, I asked the chair of the EHRC to specify which aspects of ‘physical appearance’ might be used to identify someone’s biological sex, but she provided no further clarity and instead spoke about using ‘common sense’. This is no way to write legal guidance and will result not only in trans people being harassed and excluded, but also cis people who do not conform to gender stereotypes.
Our rights rise and fall together because when equality law is weakened for the most marginalised groups, it is weakened for all of us
I believe that the law must change – making it clear that trans women are women and that trans men are men. When making its judgment, the Supreme Court sought to interpret Parliament’s intention of what it meant by ‘woman’ when passing the Equality Act in 2010. I do not believe for a second that the Equality Act – a landmark piece of equality legislation, passed by the last Labour government in the wake of the Gender Recognition Act – was intended to result in the blanket exclusion of trans people. This Labour government must therefore work to amend the Equality Act.
Yet we cannot wait until then to push back against these harmful changes. We have a responsibility to trans people, who are already living with the profoundly damaging consequences of the Supreme Court judgment, to resist guidance that risks pushing them out of public life. That is why I have been working with trans-led organisations and colleagues to challenge the Draft Code.
In June, I tabled a motion to disapprove the Draft Code. This motion is currently the only available mechanism by which MPs can reject the EHRC’s Code of Practice; if debated and passed within the forty-day scrutiny window, it would prevent the EHRC from issuing the Code and bringing it into force. This is unfortunately unlikely, but it is important that as many MPs as possible sign the motion to show their support for protecting trans rights.
At the time of writing, 146 MPs – more than one in five – have signed the motion to disapprove the Draft Code, making it one of the most popular motions in Parliament in recent years. I have also asked the government to allocate time for debate on the motion, but so far I have not received a positive response.
An attack on trans rights is an attack on us all. A logic that allows individuals and organisations to scrutinise whether someone sufficiently ‘looks’ like their sex is one that threatens any person who doesn’t conform to gender stereotypes. Our rights rise and fall together because when equality law is weakened for the most marginalised groups, it is weakened for all of us.
I want to assure my constituents, and trans people in Nottingham, that I will continue to do everything within my power to fight against the erosion of trans rights. If you or anyone you know needs support, I would encourage you to get in touch with the brilliant trans-led organisations already doing this work in our city, including the Nottingham Pastel Project and the Notts Trans Hub. Future generations will judge us by what we do in this moment, and I hope that together, we can show them that we stood on the right side of history.
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