Dozens of backbench Labour MPs have written to the government warning that upcoming guidance from the Equality and Human Rights Commission (EHRC) on single-sex spaces will cause deep problems for businesses right across the UK.
In a private letter – seen by The Guardian – to business secretary Peter Kyle, Labour MPs detailed how they had been contacted by large numbers of businesses that are deeply concerned about the implications of the guidance, including the huge potential cost it would take to bring their companies in-line with it.
Following the trans-exclusionary UK Supreme Court ruling in April in the case of For Women Scotland vs Scottish Ministers – which decided the definition of ‘sex’ for the purposes of the 2010 Equality Act means biological sex only – the EHRC swiftly published widely-criticised interim guidance.
The interim guidance recommended organisations and service providers should bar trans men and women from single-sex services and spaces, such as changing rooms and toilets, which align with their gender, but added in “some circumstances” trans people could also be barred from spaces based on “biological sex”.
It was later clarified these “circumstances” related to where “reasonable objection” could be taken to a trans person’s presence, such as in female spaces, when “the gender reassignment process has given [a trans man] a masculine appearance or attributes”.
The interim guidance was criticised by trans, wider LGBTQ+ and human rights organisations, with the commissioner for human rights for the Council of Europe, Michael O’Flaherty, outlining in a letter that the UK’s “zero-sum approach” to trans rights would lead to a “widespread exclusion of trans people from many public spaces”.
In early September the EHRC announced it had sent a finished version of the Code to the equalities minister Bridget Phillipson and a leak published in The Times suggested the finalised guidance closely resembles its interim version.
Six weeks on from its submission to the government, the final version has not been made public but the interim guidance has been removed from the EHRC website.
The letter, signed by 50 MPs, stated businesses around the UK had expressed “concern about the potential impact on service delivery and cost implications of the Code of Practice if it mirrors the approach set out in the EHRC’s draft code”, with one retailer estimating the price to install gender-neutral toilets in all 200 of its nationwide stores costing upwards of £1.2 million.
The MPs added the changes brought in by the EHRC create a “legal and compliance minefield”.
“Businesses have told us that while, up until now, they have been used to resolving issues quickly and quietly, in line with corporate codes of conduct about values of tolerance and respect, and with a commonsense approach, they believe that, if the draft code becomes an official code of practice, they will find disputes frequently escalating into expensive court action,” the letter reads, as quoted by the publication.
“Half-baked product of a rogue regulator”
Previously, Safe Space Bristol and Trans+ Solidarity Alliance urged businesses to sign their open letter opposing the EHRC’s guidance, with more than 650 firms including including Ben & Jerry’s, Lucy & Yak, and Lush Cosmetics signing and expressing concern that the guidance could “place organisations at constant risk of complaints and litigation from multiple directions”.
The letter to Kyle goes on to say the EHRC has not “provided satisfactory responses to questions around how they expect businesses to implement such stringent expectations” and added many companies are worried about the impact on their staff “in being willing to police gender” and the “moral, legal, and practical quagmire of identifying the gender identity of an individual based solely on their looks”.
This situation leaves businesses in a position where they face “the unresolved legal contradiction between the potential for being sued for challenging someone’s gender versus being sued for failing to”.
In response to the letter signed by MPs, Trans+ Solidarity Alliance spokesperson Alex Parmar-Yee said members of parliament are “absolutely right to raise the wide-ranging impact of the EHRC’s proposed bathroom ban”.
“As hundreds of businesses recently also told the government – this would be completely unworkable and risk significant economic harm,” she said.
“Telling service providers to implement blanket trans exclusion whether they like it or not is the half-baked product of a rogue regulator.
“Bridget Phillipson needs to reject the code and tell the EHRC to start again, making it clear how to include trans people in services and spaces for their lived gender.”
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