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The new EHRC Code of Practice for Service Providers has landed. Previous ones have done so without much impact, but this one comes with one of the heaviest thuds on record. This is because of the arguments which have followed last April’s Supreme Court ruling on the definition of ‘sex’ in the Equality Act and what that ruling might mean in scenarios other than Scottish boardrooms.
The Equality and Human Rights Commission – EHRC, increasingly known as Inequality Commission by some – produced “Interim Guidance” a couple of weeks after the ruling dropped. This guidance was predicated on a ‘thou must exclude trans people’ principle – the most extreme reading of the ruling possible. Upon legal challenge by the Good Law Project, the EHRC withdrew this guidance, and the Government’s own lawyers said to the court they thought the EHRC had got this wrong.
The required public consultation on the new Code was also mired in controversy. It didn’t allow any argument that the EHRC’s interpretation might actually be wrong or unworkable. The questions asked were limited and focused.
What resulted after that consultation from the EHRC was rejected by the Government. So, after protesting publicly, the Commission quietly rewrote an unknown portion of it and sent it back. They did all this without any meaningful consultation with trans people – those who were most likely to be affected by any changes. As such they had no input as to how trans people actually lived, or the problems which were likely to occur when trying to implement their recommendations.
The Health Secretary claims to be led by the evidence but has merely furthered the fact-free anti-trans agenda pursued by the Conservatives, argues Helen Belcher
Helen Belcher
They did it solely on theory and/or blind ideology. A body which has a duty to uphold peoples’ rights and dignity decided that it didn’t need to hear from the people it was going to strip rights and dignity from. And the code as published does seem to take a pretty extreme interpretation of the Supreme Court ruling – assuming that trans women and other women won’t want to or need to meet in safe spaces together, and even seemingly legitimising homophobic dogwhistles.
It’s worth noting that the Code is not law, but it does form the basis of a reasonable defence if providers rely on it. It also only applies to service provision, and not employment situations. But it’s difficult to see how this code doesn’t absolutely gut the basis of the Equality Act, the law it’s supposed to interpret.
This is relevant because the Government, when challenged on issues faced by trans people, keeps talking about dignity and respect. I met the Prime Minister in January with other LGBT+ leaders to discuss a number of issues faced by LGBT+ people. I reminded him that there is no dignity or respect in being challenged about your right to use a space, nor in having your rights removed. He chose not to address that point.
Access to appropriately gendered public spaces is essential for everyone to participate in society, and access their legal rights. Why would I choose to enter a male space if I’m refused access to a female one, as this code seems to recommend? There’s no dignity in that. If I wanted to travel to, say, lobby my MP, or challenge discrimination in court, or just go shopping or on holiday, why would I do that if I could only do so by being humiliated?
If you were a trans person who lived elsewhere in Europe, where these rights are not contentious, why would you choose to come to the UK where you’d be under increased scrutiny or potentially barred from spaces you could freely enter in your own country? That’s the challenge overseas employers now have with their staff visiting the UK. And that’s before you get into the safety factor – by requiring someone who looks visibly female to go into the gents, and (perhaps more importantly) vice versa.
If you cannot enforce your basic rights, such as lobbying your MP, going to court or standing for office, then you cannot fully participate in society. This is regardless of whether such a ban on trans people could actually be enforced. It turns going out into a lottery – will you get beaten up this time?
The organisation I head up, TransActual, did some research in the autumn where we found that gender non-conforming people, generally women and not just trans people, were already facing increased challenge and humiliation in public spaces. Some had lost their jobs. Others had decided not to continue their education. Some had experienced violence. People told us they would rather die than be forced into the wrong space in a hospital. A later survey by YouGov found that around one-in-four trans adults were actively planning to leave the UK. The cost, disruption and fear caused to tens of thousands of innocent, law-abiding peoples’ lives is immense.
After disastrous local elections, the Labour Party is discussing why it has lost so much support in less than two years. I’m a member of a different political party, but maybe I could offer one key insight. The Labour Party has lost so much support because it is not acting in the way people expect the Labour Party to act. The issues faced by trans people are just one facet of that. You can add in immigrants, or benefits claimants, or pensioners, or farmers. Labour did not have to implement the most extreme interpretation of these policies. They chose to do so.
Some in Labour understand this – Emily Thornberry for one, Andy Burnham for another, and quite a sizeable number of backbench MPs. But the Government seems not to want to listen – instead chasing policies which centre discrimination, segregation and exclusion, sacrificing one vulnerable community to try to appease the unappeasable.
Some would say, in this case, it was the Supreme Court which made the initial ruling. Except Parliament are the law-makers. They always have the option, as the sovereign body, to actually clarify or remake the law. Last summer the same government was preparing to override a Supreme Court ruling on car dealerships and commission payments if it went ‘the wrong way’. Emergency legislation was being drafted. But when it came to trans people, they chose not to.
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Then consider that this is now the fourth occasion where this Government has released something which adversely affects trans peoples’ lives immediately before a Parliamentary holiday – almost one per holiday. It’s like they know they’re doing the wrong thing, so they try to minimise scrutiny or avoid it altogether.
No clarity, no consultation, no dignity, no respect and now minimal scrutiny.
