Trans women can be legally barred from women’s restrooms, locker rooms, and other single-sex areas, according to the equality watchdog.
In an attempt to clarify the legislation, the Equality and Human Rights Commission, which is responsible for upholding the Equality Act 2010, has released new guidelines.
The suggestion will be welcomed by women’s rights activists who have claimed that transgender people who were born men should be denied access to locations intended to protect women, such as rape and domestic violence shelters.
Such exclusions, according to the watchdog, apply to persons who are born male but self-identify as female, as well as trans women who have earned gender recognition certificates, under the Equality Act.
According to the committee, businesses and other entities that discriminate against trans women must have a “legitimate aim” for doing so under current law.
Its guideline provides several examples, including those for privacy, decency, and “to prevent trauma or to ensure health and safety.”
“There are circumstances where a lawfully-established separate or single-sex service provider can prevent, limit or modify trans people’s access to the service,” the commission said.
According to the report, “limiting or modifying access to, or excluding a trans person from, the separate or single-sex service of the gender in which they present might be unlawful if you cannot show such action is a proportionate means of achieving a legitimate aim”.
Separate or single-sex restrooms, domestic violence refuges, separate or single-sex changing rooms, and hospital wards are among the places where trans women may be excluded, according to the guidance. The list, according to the committee, is not exhaustive.
Businesses and service providers should consider adopting their own policies on transgender access, but there was no legal requirement to do so, according to the report.
The commission’s chair, Baroness Falkner of Margravine, stated there was “no place for discrimination against anyone based on their sex or gender reassignment” when releasing the recommendations.
“Where rights between groups compete,” she noted, “our duty as an independent regulator is to help providers of services and others to balance the needs of different users in line with the law”.
Falkner added that “organisations are legally allowed to restrict services to a single sex in some circumstances. But they need help to navigate this sensitive area. That is why we have published this guidance — to clarify the law and uphold everyone’s rights.”
Stonewall, a gay rights advocacy group, issued a petition last year claiming that the panel was “not fit for purpose.”
The petition argued that “recent devastating public statements from the [commission] are not just a betrayal of LGBTQ+ people and a specific attack on trans people. They fundamentally undermine their core purpose of regulating, promoting and upholding human rights.”
Between 2016 and 2020, David Isaac, a City lawyer and former Stonewall chairman, was the head of the Equality and Human Rights Commission, but he has since criticized the agency for being “undermined by political pressure.”
In the dispute over single-sex areas, Falkner is said to be more receptive to the view that biological sex overcomes gender.
Sources close to the commission said that, in their opinion, it would be legal for a hostel for rape victims to exclude trans women.
Similarly, people running the hostel may welcome trans women, but if their policy was challenged in court, they would have to show a judge that they had good grounds to do so.
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