How the code of practice gets the law wrong

Good Law Project have helped a trans person and a trans-inclusive organisation take the first step towards legal action against the code of practice. The claimants have written a pre-action letter (PDF) to the government and the EHRC explaining why it is unlawful.

The challenge focuses on the elements of the guidance which tell service providers they can no longer operate on a trans-inclusive basis. The code of practice says that any service provided for both cis and trans women must also be provided to cis men – or else it is “very likely” to be discriminatory against them. It states that any service which is not a single-sex service (a service operating strictly on the basis of sex recorded at birth) “must be open to all service users”. This includes facilities such as toilets. These parts of the guidance only apply to service providers. They do not apply to associations, like Girlguiding, which the guidance says can remain trans inclusive.

When the code suggests that a trans-inclusive women’s service is “very likely” to unlawfully discriminate based on sex, it implies that this would be direct sex discrimination. But an inclusive service provided to women – based on their lived gender – doesn’t directly discriminate based on “sex” (now defined as “biological sex” under the Equality Act) at all. If you exclude cis men from a trans-inclusive women’s service, it’s not because their sex was recorded as “male” at birth. This is, in fact, proven by the admission of trans women, whose sex was also recorded as “male”, but who are allowed to use the service. It is a person’s lived gender – not their “sex” under the Equality Act 2010 – which is the reason for their exclusion.

Of course, this could still indirectly discriminate on the basis of sex. This is because trans people are a small minority – so most people who live as men were recorded as “male” at birth. So excluding people who live as men from a service will be more likely to disadvantage those whose sex is “male”. But things which would usually amount to indirect discrimination can potentially be lawful, if justified. We think it’s entirely possible, depending on the circumstances, for service providers to justify offering their services on a trans-inclusive basis as a proportionate means of achieving a legitimate aim. And this has to be understood in the context that any single-sex service, which is offered on the basis of sex recorded at birth, would similarly have to be justified. The guidance makes no real room for such nuanced assessments, rendering it fundamentally flawed.

The code of practice also, bafflingly, seems to entirely ignore the decision of the High Court in our challenge to EHRC’s interim guidance. We are still awaiting a decision on our application to appeal that decision. We will continue that challenge, which we think raises other important issues of law. This includes toilet and changing provision in the workplace – something which isn’t covered at all by the code of practice, but is where the harm to trans people can be most profound.

In its judgment on the interim guidance (PDF), the High Court disagreed with the substance of the EHRC’s legal analysis on services. The EHRC had claimed that any toilet which trans women were permitted to use must also be open to cis men to avoid discriminating against those men. But a claim of discrimination requires having been treated less favourably because of a protected characteristic. The High Court agreed with our analysis, saying there was a “strong argument” that asking cis men to use one set of similar toilets, and not the other, is different, but not less favourable, treatment:

[61] Whether different treatment is also less favourable treatment is, therefore, a qualitative question. 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. (For the purposes of the EA 2010 the lavatory would be mixed-sex, but for the purposes of the Claimants’ submission in this case it would still be labelled “women”.)

This means providing trans-inclusive toilets of this kind wouldn’t necessarily be discriminatory against men. As noted in the judgment, this would depend on the specific facts – but the analysis runs wholly contrary to the assertion of the EHRC that such provision would always “very likely” be discriminatory. It is particularly concerning that this analysis has been ignored by the EHRC and the government, given that the High Court judgment remains the highest judicial consideration of this area of law following the Supreme Court judgment last year.

And even if a direct sex discrimination claim were possible against trans-inclusive service providers, we believe there are other defences under the Equality Act 2010 which could be relied upon. These include the positive action provision under section 158 of the Act, which would allow the service provider to take proportionate action to address the disadvantage suffered by trans people. Services might also rely on the exception at paragraph 30 of Schedule 3, which allows those who offer services which are generally provided for one “sex” (but not necessarily exclusively – meaning they can be trans inclusive, as trans people are a small minority) to still exclude members of the opposite sex where it would be impracticable to provide the service to them. 

All of these possibilities are ignored by the code of practice in favour of a blanket prohibition on trans-inclusive gendered services – one which we think is wrong in law, and which encourages exclusion and discrimination.

The guidance also suggests that only providing mixed-sex services may be direct discrimination against women. This is a misstatement of the law. Such a service would be provided equally to all, regardless of sex. This is – definitionally – not direct discrimination, which requires different, less favourable treatment because of a protected characteristic. It may be indirect discrimination, which is where a policy, criterion, or practice puts people sharing a protected characteristic at a particular disadvantage – but this could be justified if it were a proportionate means of achieving a legitimate aim. This is another way the guidance gets the law wrong. 

We think the code of practice’s approach is simply wrong on a straightforward reading of the Equality Act 2010. But the legal challenge also makes arguments based on human rights. 

Article 8 of the European Convention on Human Rights protects the right to privacy. The landmark decision in Goodwin v UK – which led to the creation of the Gender Recognition Act 2004 – established that this right includes legal gender recognition for trans people. And the decision, despite claims to the contrary, was not just about gender markers on legal documents. It said that placing trans people in an “intermediate zone”, where they were “not quite one gender or the other” was a violation of their human rights. The court considered that “a conflict between social reality and law” places trans people in an “anomalous position”, in which they “may experience feelings of vulnerability, humiliation and anxiety”. In the two decades since, there have been numerous subsequent cases emphasising the importance of effective gender recognition for trans people.

The Supreme Court, summarising these principles in the case of R(C) 2017 (PDF), said that the decision in Goodwin v UK:

“puts it beyond doubt that the way in which the law and officialdom treat people who have undergone gender reassignment is no trivial matter. It has a serious impact upon their need, and their right, to live, not as a member of a “third sex”, but as the person they have become, as fully a man or fully a woman as the case may be.”

We think a law which requires trans women to be excluded from all women’s spaces and services is a clear violation of their human rights. It does not treat them as “fully a woman” – it causes a clear conflict between their lived reality and their status in law. Treating trans people in this manner – as an effective “third sex” – will often leave them without adequate services or facilities to access at all. Many such services, such as healthcare and support services are vital, and an inability to access appropriate services cause very serious harm. The suggestions risk repeatedly outing trans people, leading not only to indignity and humiliation, but even potentially dangerous situations. It will push trans people out of many aspects of normal life. We believe this position is incompatible with the UK’s obligations under the European Convention on Human Rights.

Section 3 of the Human Rights Act 1998 requires that, so far as possible, courts must interpret legislation compatibly with the convention. This imposes a strong obligation on courts. We think any interpretation of the Equality Act 2010, and how it impacts service providers trying to remain trans-inclusive, must protect trans people’s human rights. And it must also protect the rights of women to freedom of association, which are protected by Article 11 of the convention. We believe this is especially applicable to feminist organisations, whose purpose and services are political.

If a compatible interpretation isn’t possible, the challenge asks for a declaration of incompatibility. This would tell the government that our domestic law is no longer compatible with our human rights obligations – and requires legislation to fix.

For all the reasons outlined above, we believe that this code of practice is in dire need of challenge. But it is a challenge which can only succeed if we fight back together.