‘Discriminatory’ and ‘unworkable’ trans guidance to come into force

Harmful statutory guidance, which strongly encourages service providers to exclude and segregate trans people, is due to come into force on 5 August. Even though the code of practice is not binding, it is set to have a devastating impact on trans people’s lives.

While it only applies to services and associations – not employers – the guidance is widely expected to have a much broader effect. Businesses, clubs and other bodies must consider it, but it doesn’t change the law, and where there is a conflict with the Equality Act 2010 they must follow the Act.

The code says that offering single-sex services only according to “biological sex” is likely to indirectly discriminate against trans people. But instead of saying that organisations can provide trans-inclusive services, the guidance treats trans people like a third sex, suggesting they have to use separate “third” spaces and services, rather than the ordinary ones provided for men and women.

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 friends would have to explain why she can’t go into the women’s toilets with them. And third services or spaces are often not up to scratch – 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 they use gendered spaces and services. And insisting that trans people use accessible toilets, which are often already lacking, looks likely to cause problems for disabled people. While the government’s own equality impact assessment admitted the guidance would have “negative impacts” on trans and disabled people, ministers have chosen to press ahead anyway.

The code suggests that it is “very likely” to be discriminatory to offer a service for women and trans women, because cis men would be excluded. But it’s difficult to see how this aligns with the High Court’s decision in February (PDF), 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.”

We consider that this aspect of the guidance is likely wrong in law.

The updated code does row 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, alongside trans people – people with the protected characteristic of gender reassignment.

The commencement order, signed by Labour equalities minister Bridget Phillipson, comes after 40 days of so-called scrutiny in parliament. But there was no debate, and no proper consultation with those most likely to be affected, including women, trans people, and disabled people. The only action in the House was an early day motion calling for the government to reject the guidance, which was signed by 166 MPs – the highest number of signatures for an early day motion since 2020.

For Jess O’Thomson, trans rights lead at Good Law Project, the guidance is “incredibly dangerous and likely to cause unlawful discrimination”.

“It is abhorrent that despite widespread opposition this government has continued its attacks on trans human rights,” O’Thomson said. “The code is not only discriminatory, but utterly unworkable in practice – as so many organisations have repeatedly pointed out. The guidance gets the law wrong, and if service providers uncritically follow it, they may be acting unlawfully. Worse than that – they will be causing immense harm, and helping to strip trans people of their 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 services and associations – so it will apply more widely than the code. The decision in that case will have implications for the lawfulness of the code.

We’ll keep fighting for trans rights, because everyone deserves to live their life with dignity and respect.

• If you are an individual or organisation who has been negatively impacted by this statutory guidance – for example, because you are an organisation who has been unable to provide third toilets or spaces, or because you have been unable to access spaces or services which you were previously accessing – please tell us about your experiences.