The equalities watchdog has submitted its formal guidance about how institutions should respond to the landmark supreme court ruling on transgender people’s rights, with its chair admitting it would be “difficult” for many to shape workable policies.
The Equality and Human Rights Commission (EHRC) has handed its formal guidance to Bridget Phillipson, the minister for women and equalities as well as the education secretary, who must now decide whether to accept it.
One EHRC source said that while the decision-making on the guidance was restricted to a small group of people around the group’s outgoing chair, Kishwer Falkner, the expectation was that it would closely reflect interim advice released by the watchdog in April.
This alarmed transgender groups, who said its guidance that the supreme court’s ruling that the legal definition of a woman is based just on biological sex meant transgender people should not be allowed to use toilets of the gender they live as, and that in some cases they could not use toilets of their birth sex, would effectively exclude transgender people from much of the public realm.
It also said that organisations such as sports clubs or hospitals could ask to see someone’s birth certificate if there is “genuine concern” about what biological sex they are.
Speaking on Friday morning, Falkner, who departs the role in December, said she accepted it would not necessarily be easy for public bodies to turn the guidance into practical rules and guidelines.
“I think it’s going to be difficult for duty bearers, service providers, to adapt a ruling which is quite black and white into practical steps according to their own circumstances and their own organisation, which is why we’ve always emphasised they should take their own advice as well as adhering to our code,” she told BBC Radio 4’s Today programme.
Falkner, a crossbench peer, said of the advice, which has a statutory basis: “Everybody I speak to, every institution I speak to, says: ‘Can you tell us what we’re supposed to do?’ That’s wrong … they should have been doing it anyway.”
The guidance follows a consultation in which more than 50,000 responses were gathered over a period lasting six weeks – extended from an initial two weeks after MPs expressed worries about what they said was a rushed timetable.
Deciding on whether and how to accept the guidance will be a hugely complex and sensitive issue for Phillipson’s office, with no timetable set for when it will happen. The document was described by one official as “hugely complicated”.
When the supreme court ruling was published in April, Keir Starmer praised it for offering “real clarity” on a vexed issue, saying organisations and institutions would now be able to turn this into practical guidelines.
But a number of Labour MPs, as well as campaign groups, have expressed alarm that what they fear could be an overly fast and literal interpretation of the ruling could have major consequences for how transgender people live their lives.
Jude Guaitamacchi, the founder of the Trans+ Solidarity Alliance, said the EHRC had “rushed” the consultation and was proposing what could end up being “a trans bathroom ban”.
They said: “It’s up to the government what happens next. Bridget Phillipson could fix this mess tomorrow. Waving this through this would be Labour’s Section 28 moment and define their legacy on LGBT+ rights.”
