The Equality and Human Rights Commission (EHRC) has published its guidance on single-sex spaces on 4 April 2022. This is non-statutory ‘guidance’, it is not the law itself.
The key page regarding the inclusion of trans people in single-sex spaces can be found here.
The guidance explains broadly that trans people can only be discriminated against if that is a proportionate way of meeting a legitimate aim, but fails to offer a clear representation as to how high that threshold is. It is unfortunate (considering that this may be used by the general public) that the EHRC doesn’t stress that each case must be reviewed on its own facts. Rather, it presents case studies that may suggest to a reader less versed in the Equality Act 2010 (EA10) that certain scenarios can all be dealt with in a uniformed fashion.
We are highly concerned by the framing of the guidance and the impact this will have on trans people and their right to participate in society. For instance, there is a weight attached to ‘biological sex’ that is not found within the EA10 itself. The guidance also hypothetically balances the rights of people who may be ‘traumatised’ simply by a trans person being present in a space and may suggest to some that this could be a legitimate reason to exclude trans people. Sharing a space with a trans person does not present inherent danger, it does not in itself infringe on one’s privacy or dignity and we are not people that create trauma simply by existing. To suggest as much is simply a position of prejudice – the Equality Act is not there to legitimise prejudicial decisions. Further, considering trans women are more likely to experience domestic abuse because of their gender and so this is a particularly harmful suggested legitimate exclusion, we are concerned that there is also mention of the exclusion of trans people from women’s refuge or domestic abuse support is presented as generally legitimate.
We are dismayed that the EHRC may be seen to be legitimising illegitimate positions. We ask that the EHRC clarify the nuance that must be applied when applying the Equality Act 2010, as per its duty.
The guidance states those using this guidance to exclude trans people must use their own judgement as to whether it is legitimate, without necessarily knowing if someone is trans. The impact is that individuals will have to rely on their perceptions of whether someone is transgender or not, based on stereotypes. This will harm all people who do not conform to strict notions of masculinity and femininity, not just trans people. Once again, non-binary people are not mentioned in this guidance, despite making up the majority of trans people.
Trans people are a vulnerable minority in England, Wales and Scotland and they should be adequately protected from discrimination. Trans people simply want to exist in society as everyone else. Able to shop, change and live with dignity.
This guidance does little to help us and we ask the EHRC to do better. They are statutorily obliged to do better.
A message to our community
If you are challenged in a single-sex space, you have no obligation to say you are trans or not, that is your personal information. This is guidance, rather than law and is not enforceable by outside parties. You can continue to use the spaces you always have done without issue. If someone challenges your use of a single-sex space due to your perceived gender identity, please email email@example.com and we will endeavour to support.
Published with the permission of Mermaids