The incoherence of government guidance

The core question that this website is concerned with is whether, and on what basis, male adults have the right to use “female-only” single sex services, include those services provided for everyday bodily privacy (under Schedule 3, paragraph 27 (6) of the Equality Act 2010 in the UK):

Whatever your instinct on the question it is clear that policies must be clear and workable: everyone – female, male, those who identify as transgender, and the duty staff managing facilities need clarity. Everyone needs to know what to expect: who is allowed where, and what questions they are allowed to ask.

The need for clarity is a very basic requirement in situations where people are undressing and vulnerable. Without this, everyone’s privacy and dignity is at risk.

So people turn to the Equality and Human Rights Commission (EHRC) for guidance, or to the Government Equalities Office.

The EHRC Code of Practice (2011) for services, public functions and associations says this:

If a service provider provides single- or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present.

EHRC Code of Practice, 2011

“Transsexual people” is a term that is defined in the Equality Act more broadly than in everyday speech as someone “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.” (Equality Act 2010 s. 7) It does not require any medical procedure (and it does not mean that a person’s sex has changed).

There is no definition of “gender role” in the Equality Act.

The EHRC’s online guidance says this:

If you are accessing a service provided for men-only or women-only, the organisation providing it should treat you according to your acquired gender.

EHRC online guidance, 2019

“Acquired gender” is language from the Gender Recognition Act (which also does not require surgical changes). It is not used in the Equality Act.

In their most recent guidance “What equality law means for your business” (2018) they have changed the wording again.

Generally, a business which is providing separate services or single-sex services should treat a transsexual person according to the sex in which the transsexual person presents.

EHRC Guidance, 2018

The EHRC never set out clearly what any of these different formulations mean (and the fact that they keep changing the words suggests they haven’t thought it through themselves). None of it addresses the practical question of what a service provider should do in the situation where a person has a “gender role” (for example clothing) or an expressed gender identity which is different from the recognisable fact of their sex?

How are service providers supposed to train their staff to recognise these gender roles — if women can wear short hair, jeans and no make up, what is the “gender role” that transwomen must play?

Alternatively if they interpret “sex in which they present” to mean imperceptibly passing; how are they supposed to convey this policy respectfully to customers who would like to believe that they pass but in fact do not?

Guidance from the Government Equalities Office “Providing services for transgender customers” (published with the transgender lobby group Gendered Intelligence in 2015) says that instead service providers should accept that gender is not something they can ascertain:

Try not to assume you can always tell someone’s gender by looking at them or hearing their voice.

GEO Guidance 2015

The GEO guidance says that the deciding factor is the transgender person’s own choice:

A trans person should be free to select the facilities (such as toilets or changing rooms) appropriate to the gender in which they present.

GEO Guidance 2015

They define trans people to include part-time cross-dressers and those who consider themselves non-binary.

Trans people come from all walks of life and include those who may describe themselves as transsexual, transgender, a cross-dresser (transvestite), non-binary and anyone else who may not conform to traditional gender roles.

GEO Guidance, 2015

It gives as an example of unacceptable direct discrimination:

Refusing to allow a [trans] woman to use female facilities because staff perceive her to be male.

GEO Guidance, 2015

How did they get it so wrong?

All of this guidance put service providers in a position of humiliating either female customers or transgender customers and having angry stand-offs and upsets. All of it ignores the point of separate sex facilities in the first place: people of one sex can reasonably object to sharing intimate spaces with members of the opposite sex.

Allowing male adults to undress with women and girls is “unwanted conduct related to a relevant protected characteristic” which has the effect of creating an “intimidating, hostile, degrading, humiliating or offensive environment” – in other words, the definition of harassment in the Equality Act (s.26)

The guidance goes wrong from the outset in assuming that the Equality Act gives some transgender people the the right to share facilities intended for the privacy of members of the opposite sex. In fact it does not. It states that it is unlawful to discriminate against or harass a transsexual person in general.

Transsexual people (like everyone) have a right not to have their reasonable privacy interfered with. People should not have to talk about their mental health diagnosis, medical treatment or surgery.

But it is legitimate to have unambiguous policies about who can use a single sex service, which requires people to honestly declare their sex.

Separate sex facilities are therefore not suitable for everyone.

All of the official guidance make the mistake of encouraging trans people to break the rules and telling service providers they must make individual “case by case” determinations of whether an individual can be allowed into a particular service intended for the opposite sex.

All of this requires asking intrusive questions or judging the stage, validity or completeness of a person’s gender reassignment process. For example the GEO guidance from 2010 tells service providers to take into account:

This is an impossible ask – since questions about the “stage of gender reassignment” are intrusive.

A workable approach is for service providers to offer unisex alternatives to accommodate people for whom the rules governing separate sex services don’t work so that no intrusive questions need be asked and everyone has a space to undress with ordinary privacy and dignity.

The confusing mess of current guidance does not protect the rights of either women and girls or transgender people.

The Government Equalities Office and the EHRC should review its guidance to protect everyone’s rights.