On Monday the EHRC released a document on single-sex services. The document encourages the repeatedly-debunked idea that blanket bans of trans people from toilets, swimming pools and crisis centres may be legal under the Equality Act (2010). It is legally incoherent and even makes inaccurate claims about the Equality Act (2010), for example claiming that the term “biological sex” is used in the Act.
This so-called guidance is actively transphobic, assuming that organisations want to exclude trans people. It sets out scenarios of supposedly acceptable discrimination against trans people, arguing that discomfort is a legitimate reason for discrimination. This is an open invitation to bigotry and would not be made for any other minority in the UK. The published scenarios, which if followed could have the impact of excluding trans people from public life, are the equivalent of the EHRC suggesting that parents ought to be able to request that their child isn’t taught by a lesbian teacher, or that patients ought to be able to refuse to share a hospital ward with a Black person. Those scenarios are clearly unacceptable, and so are most of those included in the EHRC’s document.
The EHRC repeatedly refers to trans women as “biological males” – violating the dignity and lived experiences of trans women – and implies that the presence of trans people is an inherent risk to the “privacy and dignity of others”. It even states that a leisure centre would be justified from excluding trans women from fitness classes which involve physical contact with other women. It is wrong to assume or imply that all trans women are sexual predators and there is no justification to exclude trans women en masse from an exercise class. In fact, under the Equality Act (2010) it would remain illegal to do so without a legitimate reason.
This document does not provide statutory guidance – it has not been laid before Parliament – and organisations are not compelled to abide by it. Legal commentators have noted that organisations may well breach the Equality Act (2010) if they do follow it. We encourage all organisations to reject this document and continue to abide by their duties under the Equality Act (2010) as set out in the law. Organisations should remember that the Equality Act defines the minimum required by law, not a target to aspire to.
This obviously discriminatory document is a further demonstration of the UK government’s hostility towards trans people, being the being a result of the ministerial appointment of Baroness Kishwer Falkner to run the EHRC. Baroness Falkner has ignored the expertise of the entire legal and human rights community on trans issues specifically and seems intent on continuing to do so.
The EHRC is no longer a human rights organisation. It is a sham organisation, taken over by transphobes, that works to undermine the UK’s long standing equality laws. We note that disability groups and race groups also have problems with recent announcements and decisions by the EHRC – so trans people are not alone in that view.
Trans people can find information about their rights at www.transactual.org.uk/law. We will shortly issue guidance on the actions you can take if you experience transphobic discrimination when seeking to access single-sex services.
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