Trans people could be barred from services based on appearance

Transgender people could be asked whether they should access same-sex services based on their appearance or behavior, according to proposed new guidance seen by the BBC.

The code of practice, drawn up by the equality watchdog and awaiting ministerial approval, says it may be legal for businesses or services to ask people to provide evidence that they are of the appropriate gender by “proportionate means”.

It acknowledges that “there is no official record or document in the UK that provides reliable evidence of gender” as people can identify themselves using documents such as passports.

Equalities Minister Bridget Phillipson said she would take the time necessary to “get it right”.

Phillipson, who received the code almost three months ago, added that it was important to ensure women have access to comprehensive services such as rape crisis centres, while ensuring transgender people are treated with “dignity and respect”.

The 300-page document was drawn up by the Equality and Human Rights Commission (EHRC) after the Supreme Court unanimously ruled that a woman must legally be defined by her biological sex for the purposes of the Equality Act.

The ECHR should provide practical advice to businesses and services (eg advice to women survivors of domestic violence, gyms, hospitals or shopping centres) on how this should work.

Following the April Supreme Court ruling, EHRC guidance states that single-sex premises must only be open to people of the same biological sex, otherwise they will cease to be single-sex premises.

This would mean, for example, that a trans woman—a biological male who identifies as a woman—would not be able to use women's restrooms or locker rooms.

The guidance states that transgender people, who are also protected under equality legislation, should be treated with dignity and respect.

The updated code of practice is awaiting approval. It can only gain legal force after it is signed by ministers and submitted to parliament for 40 days.

Management, first reported by The Times, says if there are concerns, access decisions may have to be based on what someone looks like.

“Evidence of such concerns may include a person’s body type or appearance, their behavior or concerns expressed by other service users,” the guidance states.

“However, it is unlikely that such concerns are justifiably based on whether someone adopts clothing or other forms of presentation traditionally associated with one gender or the other.”

There is no official gender confirmation document in the UK. If a transgender person has a legal document called a gender recognition certificate, they can change their birth certificate to reflect the gender they identify with rather than their biological sex.

He adds that if a transgender person is excluded from a premises, the organization should consider alternatives and that it would be disproportionate to leave the person without basic services such as toilets.

The guidance recognizes that providing alternatives may not always be possible due to space or cost constraints.

It also states that “discrimination or harassment may occur” if a person is asked about their gender and that such questions should be asked “with caution.” Cases of removing someone from service should also be handled “as sensitively as possible.”

The interim guidance was withdrawn last month and EHRC chair Baroness Faulkner called on the government to speed up approval of the new code, warning that some organizations were operating under old guidance that had become unlawful in light of the court ruling.

Conservative shadow minister for women and equalities Mims Davis previously suggested Phillipson decided not to sign the guidance because she did not want to hurt her chances in the Labor Party's deputy leadership election, which ended last month.

A source close to Phillipson called the claim “utter nonsense.”

The leadership's approval may prove unpopular in some parts of the Labor Party.

During the contest for deputy leader, Lucy Powell, who ultimately beat Phillipson for the job, said: “I think we have some miscommunication on this issue, particularly in relation to some of the guidelines that are being put forward.”

Last month, 32 Labor MPs wrote to the ECHR arguing that the interim guidance issued in April would “open the door to discrimination and harassment against transgender people”.

The interim leadership, which was withdrawn in October, challenges in the courts.

During the High Court hearing, counsel representing the government suggested that the interim guidance may have been too simplistic and that access to places such as toilets could be assessed on a case-by-case basis.

In an interview with Times Radio, Education Minister Josh McAllister said the government was working “as quickly as possible” but there was no deadline for a decision.

“We want to get this right and if we don't get it right it risks the case going back to court and creating even more uncertainty for people.”

Asked if the government was avoiding making a decision in the hope that the problem would be forgotten, he said that would be “really bad policy… because the problem is not going to go away.”

“These are huge challenges… if you drill down into the examples of how this can be applied, it has big implications for individuals, for businesses and public services,” he said.

“The guidelines, as written, impact both how physical buildings are designed and how staff in those locations will have to determine and judge even whether someone may appear to be female.

“And so we want to avoid a situation where people control the toilets.”