The EHRC’s Code of Practice for services came into force this week. Single-sex services are now offered on the basis of biological sex, and providers may ask a person to confirm theirs. 167 MPs signed Nadia Whittome’s motion to disapprove it, the majority of Liberal Democrat MPs among them. It was never debated.
One fact has been almost entirely absent from the argument, and it changes the shape of it.
The law has regulated lavatories and changing rooms since the 1890s. Every one of those provisions regulates what must be provided. Not one regulates who may walk in. There is no offence of using the wrong lavatory and there never has been. A sign saying Ladies is a notice, not an instrument.
So this is not a clarification of a rule we have always had. It is the first attempt to attach a legal fact to an individual at a doorway, and it arrives with no way of establishing that fact. A passport shows recorded sex. So does a driving licence. Nothing in ordinary circulation shows what the Code has just made decisive, which leaves a provider taking the person’s word, defeating the point of a rule about birth sex, or judging by appearance, deciding something else entirely and falling hardest on women who do not look the part.
None of that is the Code’s fault, and none of it can be fixed by rewriting the Code. The Supreme Court read the Equality Act as it stands. The EHRC wrote guidance on what the Court said. Both did their jobs. What is missing is a Parliament willing to say what it actually wants, which it has not done on this since 2004 and has never done for non-binary people at all. Every attempt to avoid that conversation has produced a worse version of it: first a court, then a regulator, now a commencement date. Only an Act ends it.
A Just Society has published one in skeleton form.
- Recognition by statutory declaration.
- A closed list of exceptions to replace section 9(3) of the Gender Recognition Act.
- A privacy duty.
- Non-binary recognition.
The argument is set out in full here, on the A Just Society Substack, including a link to the skeleton bill, its exceptions schedule and the reasoning behind each clause.
Both are published to be argued with. I would rather have the argument than not.
* 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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3 Comments
“ There is no offence of using the wrong lavatory and there never has been”
This is correct – an offence would only be committed if there were some malicious intent in entering the wrong facility which would usually require some other action that was criminal in itself.
The worry is that, in the current climate, a trans woman could easily find herself charged with a public order offence such as ‘breach of the peace’ if anyone one else chose to report to the police that they had felt ‘fear or alarm’ by meeting the trans woman in a ‘single-sex’ area.
It is all about ‘attitudes’… When we lived in France we were watching long queues for ‘The Ladies’ at the French end of the Channel Tunnel whilst my wife and other ‘Continentals’ simply used cubicles in “The Gents’..
No-one, except the British, batted an eyelid..
A very good point about it not being a clarification but a deliberate change.
The initial effect of all this “clarification” has lead to more women being attacked in toilets… by other women for not conforming to their personal definition of femininity.
Honestly, just let people use whatever toilet in peace and stop pandering to a group of people that spend an unhealthy amount of time obsessing over strangers’ genitals.