The latest transphobic code of practice from the EHRC is ready

On 14 April, the Equalities and Human Rights Commission (EHRC) announced that it had submitted its latest attempt at a ‘single-sex spaces’ code of practice to parliament. The news comes a year after the Supreme Court ruled that ‘woman’ is defined by sex-assigned-at-birth under the Equality Act.

Women and equalities minister Bridget Phillipson subsequently announced that she will release the new code in May. Ostensibly, and quite conveniently, the latest delay is intended

The transphobic ‘rights watchdog’ was forced to redraft its previous guidance, which called to ban trans people from both spaces aligned with their gender and, sometimes, their sex.

Given its previous abortive attempts, the EHRC’s latest code looks likely to be another anti-trans shitshow.

EHRC: ‘a narrow set of comments’

On 14 April, EHRC chair Mary-Ann Stephenson announced that:

Progress is being made towards accurate and up-to-date guidance on the Equality Act 2010 being available to service providers, associations and those exercising public functions.

The UK government recently provided us with a narrow set of comments on the draft Code of Practice we submitted in September. Having considered this feedback alongside consultation responses and further legal analysis, we have made adjustments where they help the Code provide legally accurate, practical guidance that is useful to duty bearers.

That “narrow set of comments” presumably related to the ridiculous suggestion that service providers should guess at people’s trans status based on appearance and behavior. This was unworkable for a host of reasons, not least because there’s no legal way to establish whether or not an individual is trans.

Following the EHRC’s announcement, women and equalities minister Bridget Phillipson said:

This government has always supported the protection of single-sex spaces based on biological sex. The Supreme Court’s ruling last year brought clarity for women and service providers such as hospitals and refuges, and made clear that protections for trans people remain in the Equality Act.

That “based on biological sex” bit is a bare-faced lie. In fact, the Labour Manifesto previously pledged to make it easier to legally change one’s sex. The party quietly abandoned this promise because of pressure from the far right.

‘Getting it right’

Philipson continued:

The Equality and Human Rights Commission (EHRC) is the independent equality regulator and ensures compliance with the Equality Act 2010. Their Code of Practice on Services, Public Functions and Associations covers all nine protected characteristics and the steps service providers should take to comply with the law. We share the EHRC’s commitment to ensuring duty bearers have accurate and up-to-date guidance on the Equality Act 2010 including in the light of the recent Court rulings.

Those “recent court rulings” include a decision that it is still discriminatory to ban trans people from single-sex facilities aligned with their gender. The fact that the EHRC got this so badly wrong is also proof that Philipson’s claim that the original anti-trans ruling brought “clarity” is another lie.

The women’s minister concluded by adding that:

The government received the updated draft on 13 April. The Code will apply across Great Britain and as we are currently in the pre-election period for the devolved administrations, we are unable to make further announcements on this matter at this time. However, we are taking urgent action to meet our intention of laying the Code in May and as soon as practicable after the election period, for Parliamentary scrutiny.

We are getting it right, showing leadership by implementing the clarity the Supreme Court ruling delivers.

Before an election, ministers observe a ‘period of sensitivity‘. For the Scottish election, this began on 26 March. During this time, MPs should “carefully consider” any primary legislation relating to the devolved government. Further than this:

For Scotland and Wales it is not possible for the respective executives to seek their legislature’s consent for provisions in UK Government Bills that require Legislative Consent Motions during the election period as the legislatures will either be in recess or dissolved.

This is significant because the new code will have to be laid before parliament for 40 days before it becomes law. However, both MPs and Lords can prevent this by passing a motion to reject it.

Laughable claims of ‘clarity’

Beyond the stipulations of the period of sensitivity, the delay is highly convenient in a purely political sense. Namely, whatever Philipson actually comes out with, it’s likely to see her torn to shreds.

The deeply bigoted anti-trans pressure groups will be outraged that they’re not seeing the full bathroom ban they felt was coming. Meanwhile, queer and trans rights groups have been vocal about the fact that Philipson cannot possibly ‘get it right’, as she put it.

Alex Parmar-Yee, of the Trans+ Solidarity Alliance, put it plainly:

The only workable solution is to protect the norm of trans-inclusive provision across the country, in line with international human rights standards and Labour’s own promises to the trans community.

Likewise, trans advocacy and education group TransActual stated that:

Bridget Phillipson’s claim that the Supreme Court ruling on the definition of sex in the Equality Act delivered ‘clarity’ is laughable. The ruling a year ago led to mass confusion, inspired disjointed and discriminatory policies, and created a workers rights crisis for trans people by causing trans people to be outed at work, with some prevented from doing their job at all. The ruling and the draft Code of Practice both inspired institutional and vigilante harassment of cis and trans people based on their perceived gender.

Jess O’Thomson, trans rights lead at the Good Law Project, said:

The EHRC has been gaslighting us for a year, insisting publicly and repeatedly that their legal analysis was unimpeachable. Now it’s clear that they got the law wrong, and they’ve been told to fix the guidance they tried to force through last year. It shouldn’t have taken this long for the EHRC to do its job.

For now, trans communities are faced with yet another long wait. The Commons will return after the State Opening of Parliament on 13 May. It will then break for recess on 21 May.

We don’t know what Philipson and the EHRC’s latest attempt will bring. Until the code is finally published, our place in society remains balanced on a knife edge.

Featured image via the Canary