On April 4th, the EHRC produced a new guide ‘for service providers (anyone who provides goods, facilities or services to the public) who are looking to establish and operate a separate or single-sex service’. As the umbrella body for LGBT+ Voluntary and Community Organisations across the UK, we wish to make clear our concerns regarding that document and the negative impacts it is already having on our communities.
We wish to remind and reassure our communities that the recommendations within that document are advisory, not statutory. It does not replace the EHRCs own existing Statutory Code of Practice. and organisations are not required to follow it. This document does not change the application of The Equality Act as it currently stands, particularly in relation to the access of single-sex spaces and services. Attempts to implement the recommendations in the guidance may violate the Equality Act itself, as well as existing case law.
The language and scenarios used throughout the document assume that organisations want to exclude trans people from their services, breaking the fundamental assumption of inclusion that underpins the Equality Act. Courts have consistently found the Equality Act to state that any exclusion of trans people must be considered on a case-by-case basis, must be considered as a last resort, and must be in service of a legitimate aim. Discriminatory prejudice does not qualify as a legitimate aim.
We have been concerned for some time about the EHRC’s phrasing around and framing of trans people and we continue to monitor the situation. We are concerned by various Cabinet Ministers’ apparent support of this document and the potential impact this may have upon services and policy within the NHS, schools and the police. We would like to remind all bodies of the document’s potential conflicts with the Equality Act.
It is important that transgender, non-binary and other gender diverse people are able to access services in their communities. We have a legally protected right to access sanitary facilities, crisis services, healthcare and other single-sex spaces without fear of discrimination.
We expect providers of these and other services to uphold high standards of inclusion and we commit to challenging them when we see this is not being done.
What follows is from our original news item at the time the guidance was published:
The guidance has received criticism both from the LGBT+ sector and beyond. Issues highlighted included the terminology and language used being inconsistent with legislation, examples that seemingly focus on legitimising blanket exclusion, and the reliance on specialist trans-inclusive support services which does not reflect the reality of local service provision.
A number of our member organisations reacted to the report on social media and/or published responses to the guidance. We have linked to these below.
Mermaids produced this guide for trans young people navigating their rights in relation to single-sex spaces.
The EHRC's guidance relies heavily on the existence of trans-inclusive local services, particularly for trans victims of abuse and violence. This approach fails to acknowledge the current inadequate levels of trans-inclusive or LGBT+ specialist service provision in the UK.
— Galop (@GalopUK) April 4, 2022
We are extremely disappointed in the @EHRC's latest recommendations for separate and single-sex service providers.
— LGBT Foundation (@LGBTfdn) April 5, 2022
— Live Through This 🏳️🌈🏳️⚧️ (@LTTcancer) April 5, 2022
Our statement on the EHRC’s guidance on single-sex spaces: https://t.co/ic1T4bzUVS
The guidance provides a number of worrying examples of instances where trans people could be barred from single-sex spaces. (1/5) pic.twitter.com/WwGgeFZvHl
— Mermaids (@Mermaids_Gender) April 5, 2022
Our statement on the EHRC Guidance on single-sex spaces
“At this time, we urge gyms and sports and fitness clubs to renew their stated commitments and values as they pertain to LGBTIQ+ inclusion”
— Pride Sports (@PrideSportsUK) April 5, 2022
Why is EHRC trending, and what does this new guidance mean?
— QueerAF (@WeAreQueerAF) April 5, 2022
The EHRC have today published new guidance on single-sex services. The guidance is overwhelmingly focused on how single-sex services might or could exclude trans people from using them. (1/16)
— Scottish Trans (@ScottishTrans) April 4, 2022
Initial views: factually inaccurate in part, portrays trans women as perpetrators and reads like a “how to exclude trans people” guidebook. Statement to follow, in the meantime read this: https://t.co/bWabe19pk1
— Trans Actual (@TransActualUK) April 4, 2022
Our statement re the @EHRC guidance on separate & single-sex spaces. Discriminatory, bigoted, contradicts its own Statutory Guidance & unlikely to survive a Judicial Review. We urge organisations to continue to rely on Statutory Guidance in this area. https://t.co/Yhm2OlbIuu
— Trans Legal Project (@TransLegalProj) April 4, 2022