The Code of Practice: what you need to know

Today, the Minister for Women and Equalities laid updated statutory guidance before Parliament. Although it is not yet in force, it is very unlikely to change at this stage. The guidance tells organisations how they should approach trans inclusion.

The statutory guidance only applies to services and associations – not employers – but it is likely to be influential beyond this. The guidance is important, and has to be considered by duty bearers, but it does not change the law.

The guidance already had to be changed because Good Law Project’s legal challenge showed the EHRC’s initial draft had gotten the law wrong. This meant that after “further legal analysis”, the Minister told the EHRC they had to rewrite the guidance.

The updated code of practice rows back on some of the most harmful elements in the previous draft, such as proposals to inspect birth certificates, and suggesting that associations could not be formed for both cis and trans women. It says that associations can be formed for multiple protected characteristics – for example, LGBT+ associations. This means you can have an organisation which is explicitly for people whose sex is “female” under the Act, in addition to trans people (people with the protected characteristic of gender reassignment).

It makes clear that offering only biological single-sex services is likely to indirectly discriminate against trans people, and alternatives must be provided. But the guidance also harmfully treats trans people like a third sex, suggesting that they should use third spaces, rather than saying that services be provided on a trans-inclusive basis.

Forcing trans people to use third spaces creates stigma, and risks outing them. A trans woman who goes to the pub with the rest of her female friend group would have to explain why she cannot go into the women’s toilets with them. In practice, third services or spaces are often insufficient – denying trans people access to vital services and pushing them out of public life. This will cause serious harm.

This exclusionary approach impacts other groups too – cis women will face increased gender policing and harassment when accessing gendered spaces and services. Insisting that trans people use already insufficient accessible toilets is also likely to negatively affect disabled people.

The guidance suggests that it is “very likely” to be discriminatory to offer a service for women and trans women, because cis men would be excluded. It’s difficult to see how this aligns with the decision of the High Court in February, which said:

“…In a case where the provision of separate lavatories labelled male and female was materially similar in terms of the extent of the provision, location, and so on, I consider there would, in principle, be scope for a strong argument that a rule or practice that permitted trans women to use the “female” lavatory but required other biological men to use the male lavatory would comprise different but not less favourable treatment on grounds of sex. However, the circumstances of the case would be decisive…”

Good Law Project are continuing our legal work to defend trans rights. Our appeal against the High Court’s decision in our challenge to the EHRC argues that forcing trans people into third spaces is discriminatory, and in violation of their human rights. Importantly, the outcome of that case affects workplaces as well as service and associations – so it applies more widely than the code.

Our trans rights lead, Jess O’Thomson, notes there have been “big changes since the previous, transphobic draft – but it’s not good enough”

“It’s good to see clear guidance that associations can be for multiple protected characteristics – so you can have an organisation for both cis and trans women. And the suggestion of checking people’s birth certificates before they can use the toilet has been axed.”

“But it still treats trans people as a third sex, suggesting they should be made to use separate spaces – entirely ignoring the harm this causes, and human rights law. We will keep fighting this discriminatory approach.”