Delayed trans guidance branded ‘licence to discriminate on looks’

Campaigners have raised fears that new transgender guidance could be a “licence to discriminate based on looks” as the Government vowed not to “rush” its publication.

A report of the leaked guidance, which was handed from the equalities watchdog to ministers almost three months ago, suggests transgender people could be banned from single-sex spaces based on the way they look.

Places such as hospital wards, gyms and leisure centres will be able to ask transgender women whether they should be using single-sex services based on their appearance, behaviour or concerns raised by others, according to The Times.

The newspaper reported that the Equality and Human Rights Commission (EHRC) guidance advises it would be lawful for a transgender person to be asked about their biological sex in order to preserve single-sex spaces.

It said the guidance also advises that service providers should consider how a trans person is perceived, giving the example that a trans man could be excluded from a women-only service despite being female, because “he presents as a man” and other users “could reasonably object to his presence”.

Trans rights organisation TransActual strongly criticised the reported guidance, which it described as “cruel”, and called on the Government to reject it and order it to be “completely rewritten”.

Liberal Democrat MP Josh Babarinde, speaking in Parliament on Thursday, said the guidance as reported would be “unworkable for business”.

A Downing Street 10 spokesman said they would not comment on the contents of a leaked report, but added: “More broadly I do think you’d be hard-pressed to find people across the country who don’t think that a fellow human being should be treated with dignity and respect under the eyes of the law or in everyday life.”

Ministers have repeatedly said they are taking time to review the guidance, which was passed from the EHRC to women and equalities minister Bridget Phillipson on September 4, before deciding on implementation.

Ms Phillipson said on Thursday that she was considering the proposed guidance “thoroughly and carefully” and that the Government was “taking the time to get this right”.

She said it is “an important area and we want to make sure that women have access to a single-sex provision”, adding that “of course, trans people should be treated with dignity and respect”.

The proposed code of practice will be used by businesses and other organisations to inform their provision of single and separate-sex services such as toilets and changing rooms.

The guidance is reported to say it is unlikely to be lawful to exclude a trans person from toilets without offering suitable alternatives, and also acknowledges that in some cases the “disproportionate financial costs” for businesses could mean it is not always “reasonably possible” to provide alternatives, The Times reported.

On sport, it is also said to say trans people should not be included in single-sex or separate-sex competitions on the basis of the sex with which they identify.

But a suggestion in a draft of the code from earlier this year that a birth certificate could be requested by a sports club or hospital to check what biological sex a person is, is said to have since been removed.

The code requires ministerial approval and would only come into force 40 days after the Government had laid the draft code in Parliament.

The EHRC wrote to Ms Phillipson, who is also Education Secretary, last month urging her to hurry up with bringing in the new guidance, saying some organisations are currently using unlawful practices.

The code has not been updated since 2011 and the latest draft has been produced in the wake of the Supreme Court ruling in April, which said the words “woman” and “sex” in the Equality Act 2010 refer to a biological woman and biological sex.

The EHRC said the 2011 code is currently unlawful but some organisations are continuing to use it in the absence of a revised code being published.

The watchdog said the updated code given to ministers “accurately reflects the law and is informed by the two public consultations we ran to ensure it is as clear as possible”.

Children’s minister Josh MacAlister denied the Government was refusing to publish the guidance, because it hopes the problem will go away, telling Times Radio these are “massive issues” which have “big implications” for individuals, businesses and public services.

He said it is a “really hard issue to resolve between lots of different, competing views”, as he outlined potential practical difficulties and said he wanted to avoid the policing of toilets.

The No 10 spokesman said the code is more than 300 pages long, is “detailed and touches on complex issues across the board”.

He added: “We want guidance in place as soon as possible but we won’t rush this. Given the implications it will mean for people and businesses, due care will be taken as part of the process.”

Trans rights campaigners TransActual said the guidance as reported appeared to be “a licence to discriminate based on looks, plain and simple”.

They added: “We’ve seen this before – people trying to make our society into a place that is only safe for ‘normal’ ladies.

“Not just loos. But sports centres, changing rooms and more. We know from experience that women of colour and butch lesbians are more likely to be seen as unfeminine by strangers, so this policy would have racist and homophobic impacts as well as being obviously incredibly harmful for trans people.

“We offer our solidarity to the many cis women who have been targeted and harassed for their appearance by ‘gender critical activists’ who believed they were trans, and who would be put even further at risk by these rules.”

They urged Ms Phillipson to “treat it (the guidance) with the contempt it deserves and reject this costly, cruel and unworkable guidance, sending it back to the EHRC to be completely rewritten”.