The amended Equality and Human Rights Commission Code of Practice on services, public functions, and associations was laid before Parliament yesterday. It will become law in 40 days unless Parliament acts. That window matters, and Liberal Democrats should be using it.
I have read the code carefully. The headline is this: it does not just reflect the Supreme Court’s ruling in For Women Scotland v The Scottish Ministers. It goes further, resolving almost every area of discretion against trans people and in favour of those who want to exclude them. It makes inclusion legally risky and exclusion legally safe. That is not what the law required. It is a choice the Commission made.
The Supreme Court ruled that “sex” means biological sex for the purposes of the Equality Act 2010. That ruling set certain parameters. It did not dictate how the Commission should weight trans people’s interests in the proportionality framework, how broadly to define legitimate grounds for exclusion, or how much guidance to give service providers on how to include rather than exclude. Those were judgment calls.
The most significant of them is in paragraph 13.131, which states that a service provided to “women and trans women” could amount to unlawful sex discrimination against women. An organisation that has made a principled, considered decision to include trans women in its women’s spaces now faces potential legal liability for doing so. Inclusion has been turned into a risk. The same logic applies in reverse to trans men: a man’s service that includes trans men is equally exposed. In both directions, the code makes the inclusive choice the dangerous one.
The proportionality framework for single-sex services sounds balanced in principle. Service providers weigh the benefits of a single-sex service against the harm of excluding trans people. But the legitimate aims available for exclusion include preventing “discomfort or distress” in other users, assessed by reference to whether those users “could reasonably object” to someone who “appears to be of the opposite sex.” The threshold is not harm, not complaint, not evidence. It is hypothetical discomfort, assessed by the service provider.
Every risk-averse HR team and cautious committee seeking legal advice will be told the same thing: here is the path with legal exposure, here is the path without it. That architecture does not require anyone to be hostile. It just requires them to be cautious.
The position of trans men is equally untenable, and receives far less attention than it deserves. Under the code, a trans man is legally classified as a woman, regardless of how long he has lived as a man, regardless of whether he has undergone medical transition, regardless of how he presents. Men’s services can exclude him. But the code’s logic does not stop there. Women’s services could insist on including him, on the grounds that he is, legally, a woman. A trans man who is visibly male, who has a beard, who has been on testosterone for years, being directed to the women’s changing room because a cautious organisation has read the code and decided that is the safe choice. That is not a hypothetical. It is what the code permits.
Non-binary and gender-fluid people fare worse still. Protection under the code depends on meeting the gender reassignment definition, which requires transition toward a binary endpoint. If you identify as non-binary and cannot demonstrate that, your protection is circumstantial and almost entirely dependent on perception. The Equality Act was built to protect people from exclusion. This code leaves an entire group of people with almost no floor beneath them.
Liberal Democrats believe in individual freedom and in the equal dignity of every person. We believe that access to public life should not be contingent on who you are. The Equality Act 2010 was built on those principles. This code undermines them, not because it makes exclusion inevitable, but because it makes exclusion the path of least resistance for every organisation in the country.
Trans people are not asking for special treatment. They are asking to use the swimming pool, join the community group, access the service. A trans woman who wants to use the women’s changing room. A trans man who wants to use the men’s. A legal framework that treats their presence as a potential harm to others, and their exclusion as a proportionate response to hypothetical discomfort, is not compatible with liberal values.
There is also a practical point. The Commission had discretion. It used that discretion consistently in one direction. A future Commission, with different leadership and a different political context, could use that discretion differently. The question of what guidance the EHRC issues, and how, is a political question. Liberals should treat it as one.
The 40-day parliamentary period is the immediate lever. Lib Dem MPs and peers should be scrutinising this code, asking whether it exceeds what the Supreme Court ruling required, and making the case that guidance which makes inclusion legally risky is not a neutral reading of the law.
Beyond Parliament, the party should be clear in its own voice: we support trans people’s right to participate in public life without their dignity being made conditional on others’ comfort. That is not a complicated position. It is a liberal one.
* Tanya Park is a Lib Dem County, Borough & Town councillor in Eastleigh, Hampshire and writes at A Just Society, a liberal policy project making the case for radical progressive policies grounded in liberal principles.
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Waiting for the “but voters don’t care” comments from the usual suspects. Like trans people and their friends and families aren’t voters.
Once you accept a weakening of one group’s human rights, you accept that human rights are weakenable for everybody. Our party should’ve been screaming about this for years, but hasn’t been because the GCs use lawfare to stop us.
Beyond depressed this morning.
I hope every single one of our MPs and peers will do everything they possibly can to stop this appalling code being accepted.
@Jennie – totally.
From another point of view this call for the rights of trans and non-binary people *should* resonate with all Liberal Democrats – and liberals in general – whatever their views on sex and gender. The fact that gender critical folk are not rushing to defend the human rights of this beleaguered minority tells volumes.
I noticed the last sentences in 13.131 which state
“It is possible to offer mixed-sex service alongside a single-sex service. A mixed-sex service must be open to all service users,”
Should we now be pushing hospitals to move towards mixed-sex wards as being the majority of wards with a few single-sex wards for those unhappy sharing a ward with people of the opposite biological sex?
@Jennie totally too.
Good stuff from Marie Goodman, widely circukated by Ed Davey amongst others. What our party must now do is to promote legislation to reverse the SCs decision and restore the law to what everyone thought it was.
The EHRC is no longer fit for purpose and does not deserve the first three parts of its name. It needs to be reformed. A good start would be making its membership nominatable by the W+Eq Committee, not the minister. Until then it all too easily becomes an arm of government convenience.
We as a party should start banging the drum much harder and much more often on trans rights. Apart from it being the right thing to do, it would make us distinctive. We did it on civil liberties and Hong Kong passports, we did it on Iraq, we did it (a bit slowly for me, but still) on gay rights. We need to risk being unpopular with some people in order to be who we actually are. It would also force GC parliamentarians to defend the illogic of their position rather than relying on moral panic and the old, false canard of ‘common sense’.
@Jack
“Apart from it being the right thing to do, it would make us distinctive.”
The Greens not only ‘bang the drum’ on this but expel party members who oppose the party line.
It appears that the EHRC guidance aligns to where the public are on the Transgender debate.
https://yougov.com/en-gb/articles/51545-where-does-the-british-public-stand-on-transgender-rights-in-202425
“The Greens not only ‘bang the drum’ on this but expel party members who oppose the party line”
A pretty illiberal thing to do if you ask me. As presented by Jack, the Greens seem to be expelling people for exercising their (human) right of free expression, or – it put it another way – for describing the world as they see it. (*) Or have I misunderstood?
(*) For the avoidance of doubt expelling someone from a political party for behaving badly by bullying or bigotry or similar is absolutely right and proper. Is that why people are being expelled from the Green Party, rather than for disagreeing with policy? I imagine there are examples of both.
@Jennie – “ Once you accept a weakening of one group’s human rights, you accept that human rights are weakenable for everybody.”
From what has been presented, the various proposals for trans rights, weaken the rights of those born without the benefit of the SRY gene…
From what I can see the amended EHRC code is pragmatic response to the Supreme Court ruling and effectively maintains the current status quo whilst providing suggestions as to how to provide facilities services that balance legal rights (and obligations) and the expectations of various interest groups.
It’s exactly the elections that you have a low chance of winning that give you the chance to go out and proclaim the principles that make you distinctive, regardless of their popularity. Why not make this a point in Makerfield?
My apologies Jack – I appear to have typed your name rather than mine when I replied to your comment. Just noticed now 🙂
@Jack – they are banging the drum, and for damn sure we should have been doing do sooner and louder and more consistently. We still can, and thereby give space to people who aren’t economically where the greens are but who want to vociferously support trans rights from a liberal starting point.
In just a few short years we have gone from Theresa May being prepared to introduce new rights to Keir Starmer being willing to take the away. It’s basically the only thing he’s certain of without having to consult a focus group or U-turn.
Maybe we will soon need to scan our digital id cards to access a loo or changing room? Won’t that be fun.
Jack – Expelling party members who oppose the party line on any one policy is never a good idea. Policies change over time and there is no one party policy that a member not agreeing with the official party line that should result in their expulsion.
@Tristan Ward – with respect, it is not illiberal to expel people from a political party if they disagree with party policy. We would expel people for being fascists or stalinists, as labour would expel someone for being a conservative, or vice versa. The principle of free speech and association applies to civil society etc. As long as people are not arrested or persecuted by the state for their views, free speech remains. Those against liberalism, or the principles of the party (as decided by membership) should not allowed to be in the party, and we have every right to expel them, as the Greens have done so. We wouldn’t complain if an anti-semite, or racist, was expelled from the party, as they are in opposition to our values. They have other political groups to go to.
From what I can see the EHRC guidance is a transphobic response to the Supreme Court ruling and effectively creates a UK bathroom ban for trans people. And it’s probably unworkable as it will lead to potential problems for cis people who don’t do gender in conventional ways.
No problem Joan 🙂. It’s a new twist on the Ed Balls day tweet 😊
@slamdac – while that’s true to an extent, that YouGov data shows two things. One is that public support for trans rights has declined over the last couple of years, and the other is that younger people are far more supportive than older people. A bit like the Brexit debate.
All that’s changed over the last couple of years to change public opinion is high profile campaigning, scaremongering and well-funded lawfare against organisations trying to remain trans-inclusive.
That’s why it’s so important that liberals continue to make the case and fight for trans rights, and call out the scaremongering in a way that is heard, because the public need to hear the other side of the story.
Some of the organisations and deep pockets behind the relentless campaign against trans rights aren’t too keen on things like gay marriage or women’s reproductive rights either.
@Slamdac. I suspect the vast majority of the public never give a thought to trans issues at all. The Express and the Mail do their best to stir up hatred against trans people, but when were their vile views ever a guideline for LibDems?
My extended family and friends include a number of trans people, Sometimes (Keyna Immigrants Bill for example) our party has to stand up for what is right even if it is not popular. Kowtowing to prejudice is never right.
The GC people is our party use their money to try and subvert the will of our members on trans issues. Now is the time to stand up and shout for trans rights and for changing the Equalities Act to overrule the SC decision. Which of our MPs will put forward the necessary legislation? This pusillanimous government never will.
In my 40 years of party membership and during the time I was a Councillor and an MP, I consistently opposed the party line on the use of nuclear weapons and believe there are no circumstances where we should ever use them. When I spoke at conference in opposition to keeping them, only the intervention in the debate by the then party leader, Ming, brought it to a card vote which then was lost by just a few votes. I voted for Scottish Independence (against the party line) as a way of keeping Scotland in Europe and to stop it being dragged out of the EU by a Brexit vote in England, (which then happened) I did not support votes at 16 or all women shortlists (AWS) and was consistent in opposing AWS despite one prominent female campaigner against them later becoming the party leader. One fellow Scottish Party Executive member did suggest that my line on Independence (which I no longer support now that we have left the EU) should be reason to expel me from the party. However he was in a minority of one. People feel very strongly on a range of policies, but healthy debate is always the best way forward, not expulsion from the party. As I am now a former party member, I can speak on any issue including self ID and other controversial issues without fear of expulsion.
The Lib Dems have spent the past year calling for clear guidance on how organisations should implement the Supreme Court ruling. Now we have it. The law is clear, single-sex exceptions are based on biological sex. The guidance spells out that that means. The guidance is not ‘law’ so in 40 days time it does not ‘become law’. More accurately – the amended EHRC Code of Practice has been laid before Parliament. Unless either House objects within 40 days, it will come into force as a statutory code of practice.
We should be making a lot of noise about this, this is going to be especially hard given that most of the 40 Days will be taken up by The endless speculation around The By-election & comment on the result, everything else will be fighting to get any coverage at all.
It’ll be important to see just how many MPs sign the motion to annul the EHRC Code over the next six weeks.
@Mick Taylor
“ for changing the Equalities Act to overrule the SC decision”
Perhaps we should be starting a discussion as to what change to the Equality Act we would wish to make. Would it be better to replace ‘sex’ with ‘gender/gender identity’ as a protected characteristic? If so, perhaps we would also have define ‘gender identity’ to clarify whether that is by self-ID?
I suspect that a lot of the disappointment and confusion has been caused by the misleading interpretations that various organisations have delivered over the years since the Equality Act (2010) became law. Misleading advice has encouraged people to think that ‘sex’ means how you self-identify, rather than the biology with which you were born. This latest EHRC guidance is a code of practice offering guidelines and advice for public-facing services, such as leisure centres and theatres. This guidance was deemed necessary after the Supreme Court ruled last year that ‘sex’ in the Equality Act always meant biological sex, and not personal feelings and identities.
@Joan Summers. Your suggestion would achieve what the Act was supposed to have meant.
I just cannot understand how this works out in practice.
Someone I have known as a man, and no reason to think he was not, for about 15 years. He did a presentation to a voluntary sector group here a few years ago on his journey from being a woman transitioning to a man. Very well presented and informative.
Not everyone was there of course, so if you weren’t you would have not known he was not biologically a man, why would you.
Most of the voluntary sector meetings are in community halls and such that have mens and ladies toilets and work on a shoestring.
I just cannot imagine the upset of a person dressed, speaking like, and generally known as a man walking into the ladies toilets. Not only quite a shock, but very distressing for a woman who has good reason to be fearful of men.
@ Owen
I fear you are confusing policy with principle. If the party could expel anyone who disagreed with any item of policy there would be no one left (see John Barret’s post above – are you suggesting it would have been acceptable to expel him?)
Free speech is as fundamental to liberalism as is a belief in the right of an individual to do what they like and not go around in fear. As Mill showed us, you balance these competing claims by analysis of data, argument and compromise.
The whole thrust of the case in the SC and the vile hatred in the right wing press is aimed at Trans Women. It is based on the false supposition that trans women are all potential rapists possing a women to get into female spaces. Although trans men are mentioned in passing there is no real head of steam about trans men going into men’s spaces.
My question, as it has been from the start, is “where is the evidence”. (One alleged case of an incident in one prison is not evidence of any widespread or coordinated campaign against women).
Like Suzanne, I know of both trans men and women who you would be very hard put to identify as Trans. They look and act like the gender they are in. Of course, there will be a few people who appear to be a different gender, but that number of vanishingly small.
So, how is this ‘guidance’ to be policed? Presumably by a few GC people taking umbrage and reporting someone to the police for not looking like the gender they claim? I suspect that this will include butch women and feminine looking men? What a farce!
The law needs changing and fast. Which LibDem MP will take up that challenge?
The Supreme Court is the highest court in the land. Their decision is settled law. The judges in the SC decided unanimously that when it comes to discrimination & equality, it is sex which matters. That it is impossible for women’s rights to be upheld if a special category of men & women can use spaces & provisions meant for the opposite sex.
The problem is that in 2011 misleading advice was given & this was allowed without pause for impact on women to filter through society & become entrenched. Now that wrong has been noticed by the Supreme Court, our politicians haven’t been brave enough to tell the truth. That the law say trans people cannot co-opt into women’s rights & women’s rights aren’t up for negotiation.
We need our MPs & councillors to put their big girl & big boy pants on & confirm it is time to accept the law.
@SamBateman. That isn’t what the SC decided. What they said was that the wording of the Equality Act says that for the purposes of that Act sex means biologiocal sex.
You are mistaken on matters of fact. The SC doesn’t make law, it interprets it. Parliament makes laws and can change the law to nullify the effect of the SC and should do so.
MPs and others can accept the interpretation by the SC to be what the law currently means, but can and should take steps to amend that law to mean what the promoters of the Equality Act meant it to say.
The decisions of the SC cannot bind parliament or MPs to accept them or stop them from changing the law to nullify those decisions. That’s how our unwritten constitution works.
@ Suzanne Fletcher = ”I just cannot understand how this works out in practice.”
Added complexity…
With modern trend to be more explicit, the various associations and organisations I’m involved with are having to rework their articles of association etc. because they were drafted in a time when the masculine form (eg. “He”) referred to a person and not explcitly and exclusively to a specific gender.
In our small village hall, we have simply removed the gender specific labels off the doors of the individual toilets, in larger premises eg. A former Victorian school, things are not quite so simple. Whilst we could continue with the Male/Female designations, we can be sure that at some point there will be someone who will want to create an example and rather than just quietly use the facilities with due consideration (as they did in the past and mostly do today) will make a public fuss… However, as that community building is mostly used by a community with entrenched attitudes to women, we know we need to provide a women/female only space where we can exclude men from.
@Roland. My Quaker meeting has decided to make its toilets unisex. So there is no problem who uses them. In practice, men including trans men use one and women including trans women the other. t can be really that simple. All that is required is good will and an absence of hatred.
@Mick Taylor – Getting Quakers to agree, at times an interesting game of herding cats … 🙂
Agree in some situations things “can be really that simple”. however, I hope you removed the gendered specific labelling, just to avoid some idiot deciding the presence of the traditional signage was in some way offensive or not inclusive…
Yes it is interesting to see how old habits continue. I remember a training course where the two classroom modules were 6 months apart. At the second classroom session, the tutor got out the seating plan from the first course and it was notable just how many people were sitting in exactly the same place even though people had been free to choose their own seat and the tutor had deliberately allowed people to enter the room in a different order.
Agree with the good will and a degree of understanding that most operators of public access buildings (I include QMH’s which let out rooms in this) are only really trying to do their best, so documents like the EHRC code are really useful.