Equalities chief defends guidance on excluding trans people from single-sex services

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Unisex toilets

The head of the equality watchdog defended controversial guidance that transgender people can be legally excluded from single-sex spaces in certain scenarios, and called for calm in the debate.

Kishwer Falkner, chair of the Equality and Human Rights Commission (EHRC), said campaigners would not force a change to the guidelines issued earlier this week.

Writing in the Daily Telegraph, Baroness Falkner said: ‘We do not make the law, but it is our regulatory function to uphold it, regardless of government, campaign groups or vested interests.

In the guidelines, the first to be set out on this issue, the EHRC said organizations such as shelters and gyms can legally prevent, limit or modify trans people’s access to single-sex services in certain circumstances, such as to prevent injury, enable privacy or to ensure health and safety.

Organizations must balance the impact on all service users and demonstrate “good enough reason”, he added.

But the ruling sparked a backlash from trans groups and the LGBT+ charity Stonewall, which said it was likely to cause more confusion and a greater risk of unlawful discrimination.

Lady Falkner wrote that despite the “often toxic tone of debate in the media or online”, the British people, “with a characteristic sense of fair play, understand that this is a complex issue and that every situation requires a balanced approach and careful consideration”. .

The EHRC is the regulator of the Equality Act 2010, which protects people from discrimination because of their protected characteristics, including sex and gender reassignment.

Lady Falkner said: “With nine different protected features to consider, each with their own interests and needs, it is inevitable that there will be occasions where certain rights overlap.

“It is the role of the EHRC to balance them.

“One such example is the provision of single-sex spaces.

“The law is clear that organizations can sometimes limit access to their services to one gender, just as it is clear that trans people have the right to live their lives without discrimination based on the gender with which they identify.”

She also wrote, “Sometimes competing rights don’t necessarily mean conflict.”

Saying that issues of sex and gender identity had dominated discussions since her appointment as EHRC chair in 2020, Lady Falkner called on people, “regardless of their heartfelt opinions, to bring down the temperature of the debate and to work constructively with us to achieve a fairer society for everything”.

She said the guidance, which followed calls for clarity from the Commons Women’s and Equalities Committee and service providers, was an “effort to help” organizations understand the equality law.

A Stonewall spokesperson said: “Far from clarifying how gender-segregated exemptions from the Equality Act should be used, the latest non-statutory guidance from the EHRC is likely to create more confusion.

“It seems to go against the fundamental presumption of the law, that inclusion should be the starting point, and shifts the focus to why trans people, and especially trans women, can be excluded.

“The examples seem to encourage blanket bans, rather than case-by-case decision-making, and cover restricting access to everyday settings like bathrooms and gym classes, which is extraordinary.

“It leaves more, not less confusion, and more, not less, the risk of unlawful discrimination.”

The Prime Minister said this week that women should have access to gender-separated spaces in places such as hospitals and prisons.

In what appeared to be a nod to advice from the equality watchdog, Boris Johnson said: ‘I also think women should have spaces, whether in hospitals, prisons, changing rooms or elsewhere, which are dedicated to women”.

He also said ‘biological men’ should not compete in women’s sports when asked about the decision not to include transgender people in the government’s proposed ban on conversion therapy.

The government has faced heavy criticism over a series of U-turns last week on promised legislation and whether transgender people would be protected by it.

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