We’re supporting a legal challenge against the code of practice

The government’s transphobic statutory guidance is now in force, telling organisations that provide services – like clubs, gyms and cookery classes – they can no longer be trans inclusive. This will have a devastating impact on the everyday lives of trans people. So we’re backing a legal challenge against it.

We have helped a trans person and a trans-inclusive organisation to take the first step, supporting Leigh Day to write a pre-action letter (PDF) to both the EHRC and the government explaining why the code of practice is unlawful.

While associations, like Girguiding, can remain trans inclusive, the code says that any service provided for both cis and trans women must also be provided to cis men – otherwise it is “very likely” to be discriminatory against them. If a service doesn’t operate on the basis of sex recorded at birth, it continues, it “must be open to all”.

Trans-inclusive women’s organisations, for example, are now faced with a stark choice:

1. Ban trans women entirely.
2. Stop being a women’s service, and open up to all men.

This blanket instruction puts inclusive organisations in an impossible position. It applies to all gendered toilets – encouraging a nationwide trans bathroom ban which Trump could only dream of. But it also applies to women’s pottery classes and gardening clubs. The guidance lacks nuance, ignores context and pays no attention to the ways women want to run their own spaces and services.

We think that guidance is wrong in law and violates people’s human rights. Once again, the rights of trans people to be fully recognised as their acquired gender have been completely ignored. The code risks outing them, marginalises them in everyday life, and pushes them out of public spaces and their communities. It also increases the risk that cis women will face harassment and challenge, tells them they must change the way they run their services, and may even breach their human right to associate with the trans women they consider as much a part of their sisterhood as anyone else.

For Good Law Project’s trans rights lead, Jess O’Thomson, sometimes it’s “difficult to believe just how far backwards our government has gone on trans human rights”.

“This Labour government pushed through its transphobic guidance in the face of opposition from many MPs,” O’Thomson said, “including nearly a hundred of its own backbenchers. It’s not just immensely harmful. We think it’s unlawful, and completely against human rights. So this challenge is absolutely essential.” 

After we pointed out the legal problems with the EHRC’s draft code of practice, the commission and the government took out some harmful material. But the guidance comes into force with some of the exact errors of law we warned against.

Ever since the updated draft was published in May, we’ve been working hard to put together the strongest possible challenge to its most dangerous and mistaken assertions. The challenge we’re supporting outlines the numerous ways in which we, and the claimants’ legal team, believe the code of practice has gotten the law wrong.

This transphobic statutory guidance will cause immense harm – and it’s all based on wrongheaded reading of the law. It will have devastating consequences for trans people’s lives, as well as a dreadful impact on women, disabled people and countless organisations. It cannot be allowed to stand – so together we’re fighting back.

• Explainer: How the code of practice gets the law wrong and the legal arguments against it