Updated EHRC Code of Practice: GI’s response

What’s happening?

The Equalities and Human Rights Commission (EHRC) has released its finalised Code of Practice.

This is a document that advises services and businesses on how to interpret the Equality Act. It doesn’t change the Equality Act, but it influences how courts interpret it.

The Code of Practice has been changed because of the Supreme Court's judgment last year on the interpretation of sex in the Equality Act. This includes significant revisions on the inclusion of trans people.

The Good

Let’s not mince words: The new Code is unjust and unhelpful and could prove disastrous for trans people and those who want to support us.

But there are some positive changes:

• Recognition of non-binary people
  It’s now more clear that non-binary people have the protected characteristic of gender reassignment – that covers trans people – if they change their name, dress, or otherwise transition away from their birth sex.
• Recognition of trans children
  The new Code also makes abundantly clear – as has always been the case – that people under 18 can also have this protected characteristic, i.e. that children can be trans. Schools must make sure they don’t allow discrimination or harassment against any trans, non-binary, or gender-exploring children.
• Gendered groups can include trans women
  A common sense rule has been introduced for associations, meaning that LGBT+ groups can have members on the grounds of both sexuality and gender identity, or that women’s associations can include cis and trans women without needing to also include men. 
  Organisations like the Women’s Institute and Girlguiding, who were pressured to exclude trans women and girls, can now take steps to move back to their trans-inclusive policies.
• No ID checks for toilets and basic services
  This draft has also dropped the ridiculous and cruel requirement for birth certificates to be required for single-sex services, and makes a common sense recommendation that there is no practical or reasonable way to check ID for basic services like toilets.

The Bad

The Code empowers those who want to exclude trans people from services and spaces and makes life harder for those who want to support trans people. 

Domestic violence refuges that have been supporting trans women without issue feel they have to jump through hoops to keep supporting them legally. 

Businesses and workplaces are likely to go gender-neutral – sometimes at considerable cost – to avoid lawsuits. 

Despite there being no issues historically with a trans-inclusive approach, the government and the EHRC have bowed to a vocal minority of anti-gender activists and taken a cruel, inconvenient, and exclusionary position.

It treats trans people as a third sex and sets a dangerous precedent for a hierarchy of rights where gender reassignment is weaker than other protected characteristics.

The Ugly

In reality, very few service providers and business owners want to exclude trans people. Most people are kind and respectful and just want to get on with their work. 

But these exclusionary changes have a chilling effect on trans people’s participation in public life. Creating an atmosphere of fear around basic access needs leads people to self-isolate.

We are already seeing members of our community disengage from sport and physical activity, from education, and even from basic healthcare because of the overwhelming fear of exclusion.

It also creates a culture where people are policed by others on how they present their gender. Trans people, especially trans women, are more likely to be subjected to violence, harassment, and discrimination because of the way they look. Over the last year, we’ve seen this happen more and more to cisgender people – overwhelmingly women – who have been barred from toilets or harassed in the street because they were mistaken for a trans person. Using the law to encourage people to discriminate based on appearance threatens to undo decades of hard-won equalities.

Finally, these changes do nothing to solve the problem at the heart of this mess: well-funded and aggressive abuse of the courts to attack the rights of marginalised people (sometimes called ‘lawfare’).

Services that want to help and support trans people are still threatened by a small group of well-funded individuals who want to use the law to force exclusion. The Code – and the law in general – needs to be brought up to date to protect against this dangerous anti-rights agenda.

What happens next

One thing is more important than anything else: Keep living your life

It's completely valid to feel scared, angry, or overwhelmed right now. You're not alone in those feelings. The Code of Practice may feel like another blow, but know this: Your identity, existence, and rights are worth fighting for. 

Our community has survived, even thrived, under hostile laws and regulations before, and we will do so again. 

Should they want to, it may be easier for services and businesses to exclude trans people now, but most places will be welcoming or simply won’t care. Remember:

• There is no toilet police
• There is no realistic way to blanket exclude trans people – even if the government really wanted to. 
• You are under no obligation to answer questions about your gender or sex. If someone harasses or humiliates you to try to make you prove it, this is discrimination
• There is no reason not to keep doing the things you love and building the life you want

We’ll be publishing revised guidance for services and public functions on how to keep including trans people while minimising risk. We’ll also create guidance for our communities on staying safe and keeping connected during this difficult time.

We’re demanding that the government step in to sort out the mess they’ve created. The inconsistency and uncertainty across workplace regulations, school regulations, legal gender recognition and equalities law have created a nightmare that the Code does not fix. It will be a long journey, but we will keep pushing for change until we have fair and equal treatment of trans people in all areas of life.

And, of course, we’re going to celebrate our communities and our services here at GI. No matter how hard it seems or how long the journey is, we’ll always be here in love and solidarity with the whole trans community.