What is the code of practice about and who does it apply to?
The updated code of practice is written by the UK equalities watchdog, the Equality and Human Rights Commission, and offers guidance to service providers, associations and those delivering public functions about how to apply all aspects of the Equality Act.
The code covers all nine protected characteristics, such as disability, race and sexual orientation, but there is especial focus on this update because it also includes practical guidance on how to apply last year’s supreme court ruling about single-sex spaces.
Speaking as the draft code was published, chair of the EHRC, Mary-Ann Stephenson, was keen to clarify what the code does and does not do: “We are not deciding what the law should be. Parliament does that. The supreme court clarified what it is. We are just providing guidance for service providers on how they can best follow the law.”
Why was this update necessary?
This was the first update to the code in more than 10 years and was well under way before last April, when the supreme court ruled on a long-running case against the Scottish government brought by gender critical campaigners For Women Scotland (FWS).
The landmark judgment said that, for the purposes of the Equality Act, the legal definition of a woman was based on biological sex. This has had significant ramifications for who can now access women-only services and spaces, such as refuges or toilets.
Immediately after the ruling, a few companies moved quickly to bar transgender people from using facilities of their lived gender, but most remained in limbo, concerned about the costs and practicalities of providing extra gender neutral toilets, for example, and awaiting further guidance from the EHRC. Those businesses that want to remain trans inclusive have highlighted a “minefield” of competing legal rights and staff concerns about being forced to police toilets.
The EHRC first submitted it’s draft code to the UK government last September, and there has been ongoing criticism of ministerial delays from gender critical campaigners and businesses awaiting clarity.
What does the new code of practice say about the supreme court judgment?
The new code reinforces last April’s ruling, and gives a wide variety of practical examples showing how service providers might apply it.
The code is clear that if a service provider admits a trans person to a service that aligns to their lived gender, that service can no longer be described as single sex and the provider is “very likely” to be at risk of legal challenge.
It is also clear that it is not unlawful to exclude a trans person from a single-sex service of their own biological sex “as long as doing so is a proportionate means of achieving a legitimate aim”, for example to prevent a male-presenting trans man attending a group counselling session provided for female survivors of domestic violence.
But it also states that if service providers don’t offer alternative facilities for transgender individuals, such as gender neutral toilets, this is may also amount to discrimination on the basis of gender reassignment.
What else does the updated code say?
Although the focus of interest is what the code says about single-sex provision, it includes a range of new protections for people across the country, including for women whose menopause has a significant impact on their everyday life, updates to reflect the legalisation of same-sex marriage, and clarification that women who breastfeed are protected from harassment.
What happens to the code now?
It will be laid before parliament for 40 days, as a formality, after which the equalities minister, Bridget Phillipson, issues a statutory instrument and it comes into force and is then subject to the EHRC’s enforcement powers.
