The Code of Practice must be clear
Sex Matters has submitted a response to the Equality and Human Rights Commission on its consultation on the Code of practice for services, public functions and associations.
The online survey asked people to limit their main written responses to 250 words per chapter. We found that this was inadequate, so we have sent an additional letter and note to Baroness Kishwer Falkner, chair of the commission.
This is the first time the statutory code of practice has been updated since 2010 and there have been important changes made, particularly to chapter 13, which covers the single-sex service exceptions.
Previous advice that service providers “should treat transsexual people according to the gender role in which they present” and that the denial of a service “should only occur in exceptional circumstances” has been removed and replaced with advice that service providers “should consider their approach to trans people’s use of the service”.
Transactivist organisations such as Trans Safety Network are not happy.
But the proposed code remains vague and overcomplicated. Instead of providing simple examples that explain to service providers such as gyms, pubs, hospitals and women’s refuges that the only way to provide a single-sex service (or part of a service such as toilets or changing rooms) is to exclude members of the opposite sex, it encourages uncertainty and equivocation.
It suggests that a nursing home could provide care in a “women-only wing” while including a man who identifies as a woman among the residents.
The new draft code says that:
“if the justification for limiting or denying trans persons’ access to the single sex service for their acquired gender does not outweigh the potential discriminatory effects, it is likely to be unlawful to do so.”
And on competitive sport it warns organisers that it may be unlawful to exclude trans-identified men from women’s sport without some additional justification other than that they are men.
We think this advice is legally wrong and unworkable.
For the past 15 years the Equality Act has been widely misunderstood as giving transgender people the right to use opposite-sex facilities and services because of the protected characteristic of “gender reassignment”. The current draft of the new code does not do enough to dispel this myth.
The final version of the code will need to reflect the Supreme Court’s judgment on the definition of “sex” in the For Women Scotland case, which is expected in spring.
But the law is already clear that the protected characteristic of gender reassignment is not an access-all-areas pass. As is clear from the Hansard record from 2008, when gender-reassignment discrimination protection was first introduced in relation to goods and services, the intention was only ever to address general discrimination and harassment:
“The regulations simply outlaw a person being denied access to a shop or being the subject of abuse by a sales person, for example, because they intend to undergo, are undergoing, or have undergone gender reassignment.”
Most shops and services – such as bookshops, hardware stores, pubs, car mechanics, banks and transport companies – serve both men and women. They have no no reason to deny service to a transgender person.
Where single-sex services are lawful, such as in changing rooms, toilets, showers and women’s refuges, service providers must be able to communicate and enforce sex-based rules. This means that service providers must routinely be able to recognise that “trans women” are men and “trans men” are women, and not be frightened by accusations of “transphobia”.
The code of practice, through both its explanations and examples, must give service providers, public authorities, associations, charities and sporting bodies the courage and confidence to simply say “No” to people who wish to have lawful rules which relate to members of their sex waived for them, even if they experience the rules being enforced as hostile or offensive.
The code should point them to the important principle set out in the case of Pemberton v Inwood (a case about sexual orientation and religious belief):
“If you belong to an institution with known, and lawful, rules, it implies no violation of dignity, and is not cause for reasonable offence, that those rules should be applied to you, however wrong you may believe them to be. Not all opposition of interests is hostile or offensive”.
The EHRC and its chair have already faced a barrage of criticism from internal and external transactivists for standing up for women’s rights and single-sex services. If the EHRC obfuscates the code in order to try to find a “middle way” that avoids conflict it will fail, and it will leave dealing with hostility, uncertainty and confrontation to frontline staff and service users.