Trans and non-binary Brits brace for code on single-sex spaces

LONDON - LGBTQ+ groups say new rules governing how businesses and public institutions in Britain provide for transgender and non-binary people risk creating increased segregation and exclusion.

Britain's Equality and Human Rights Commission (EHRC) is finalising updates to its services, public functions and associations code to reflect an April Supreme Court ruling that said the legal definition of a "woman" under the Equality Act 2010 did not include trans women.

LGBTQ+ groups have said proposed changes would deny trans people dignity and exclude them from accessing even single-sex service providers and organisations that seek to be inclusive.

The equalities watchdog launched a consultation in May ahead of the revision to its code and received more than 50,000 responses.

The EHRC is examining the responses and will incorporate changes "that are necessary and consistent with the law" into the final draft, which is expected to be sent to the minister for equality in the coming weeks.

Here's what we know so far.

What are the proposed changes to the code?

The EHRC proposes to update the definition of 'legal sex' in the code so that it refers to a person's sex recorded at birth, regardless of whether they have since started transitioning or obtained a Gender Recognition Certificate.

Another update says associations that restrict membership to people who share the same protected characteristic of sex, such as women-only organisations, can legally bar trans people of a different birth sex from joining.

It also states that single-sex associations cannot lawfully grant entry to anyone from outside that category, even as a guest. This would block women-only spaces, for example, from including trans women if they wanted to.

In a similar section on the provision of single-sex services, the EHRC says allowing trans women to use a service provided to women only, such as female toilets, would also be unlawful, and could amount to harassment.

Where possible, it recommends providing mixed-sex services, such as gender-neutral toilets in shopping centres or changing rooms with individual lockable stalls in sports centres.

The EHRC also advises that asking a person about their birth sex should be "necessary and proportionate", with consideration given as to whether it is "reasonable" to ask for evidence.

The new code would also allow for trans people to be excluded or treated differently in relation to 'gender-affected activity', such as in single-sex competitive sport, in order to protect fair competition.

Trans people can still take part in the category of their sex assigned at birth, unless this also impacts fair competition or puts themselves or others at risk of getting hurt. 

How have LGBTQ+ groups reacted?

Rights groups and public figures have criticised the proposed changes, with 16 organisations writing to the United Nations Independent Expert on Sexual Orientation and Gender Identity about the guidance in July.

Stonewall Housing, which helps LGBTQ+ people affected by homelessness, said the guidance on asking about sex at birth "risks significant harm", while Rainbow Migration, a group supporting LGBTQ+ asylum seekers, said it would entrench barriers experienced by vulnerable trans, intersex and non-binary people.

Mermaids UK, a charity supporting trans or non-binary children, said a quarter of trans students experience transphobia while in education and that the guidance would embolden bullying.

A report published in August by activist group TransActual cited multiple interviews with trans and gender-nonconforming people who have already facing harassment in single-sex spaces. 

"This isn't just about access to bathrooms, it has the potential to affect our ability to work, to access care/safety, to socialise and to equally participate in public life," model and trans activist Munroe Bergdorf wrote in a post about the revised EHRC code on Instagram.

What happens next?

The EHRC said earlier this month it was analysing the more than 50,000 responses received during its consultation, including by using "supervised AI technology".

A draft of the code will be submitted to Equalities Minister Bridget Phillipson for approval, and she will lay it before parliament. It will then become statutory 40 days later, unless parliament passes a resolution to disapprove it.

Breaching the code can lead to a court order or unlimited fine, while individuals who might feel harassed or discriminated against can also pursue legal action. 

LGBTQ+ groups have described the process as "undemocratic", and want the code to be debated.

"There is no vote, no debate and no scrutiny. It's essentially being pushed through behind closed doors," Jude Guaitamacchi, founder of the Trans+ Solidarity Alliance, told Context during London Trans Pride.

(Reporting by Lucy Middleton; Editing by Jon Hemming.)