The Equality and Human Rights Commission (EHRC), an organisation that the trans community in Britain has been aware for a while now does not have the rights, protection, or safety of the trans community in mind at all, has released interim guidance following the Supreme Court ruling that explicitly calls for trans segregation. The guidance tells organisations that manage public spaces, as well as workplaces, that they will need to create segregated spaces for trans people when it comes to bathrooms, changing rooms, and washing facilities.
The decision of the EHRC seems to be based in the Supreme Courts ruling that same-sex spaces must align with 'biological sex'. It's worth noting, however, that biological sex, and the necessary conditions to be classed as either a man or woman, have not been provided beyond what is listed on a birth certificate. Despite ruling that biological sex is all that matters we have yet to be told if this is based on genotypic sex, or phenotypic sex characteristics, or what happens when people fall outside of these deciding factors. But as anyone with more than a basic understanding of biology knows, there is no singular necessary condition to define biological sex, that sex is bimodal with a spectrum and not binary, and that there is no basis in any science for this ruling.
However, with the Supreme Court making a declaration that single-sex spaces must now be split by biology what does this mean for trans people? Well, before the EHRC guidance (which was published late Friday night), it was assumed that this would force trans women into male spaces, and trans men into women's spaces. There were caveats in the ruling that outlined that some people, such as trans men, could be barred from women's spaces as it was decided that despite not being men, they were too much men to be put with women. This seems to be where the EHRC has drawn inspiration for its guidance, as it has now issued instructions that call for the segregation of trans people completely.
The guidance states the following:
'trans women should not be permitted to use the women’s facilities and trans men should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex'
'in some circumstances the law also allows trans women not to be permitted to use the men’s facilities, and trans men not to be permitted to use the women’s facilities'
'however where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use'
'where possible, mixed-sex toilet, washing or changing facilities in addition to sufficient single-sex facilities should be provided'
Perhaps it's my interpretation of what's being said here, and I'll admit that I'm not qualified in law, but it does seem that the EHRC is saying that trans people cannot use spaces that align with either their gender, or their 'biological sex', but that they should not be left without a space, therefor requiring the implementation of a separate space for them. A separate space where they can be segregated from cis people. If this is the case this comes as a truly horrifying piece of guidance, one that seeks to both overstep the bounds of the Supreme Court ruling, and to explicitly harm trans people across the UK. It is also worth noting that this guidance also applies to trans people with a Gender Recognition Certificate.
As this is interim guidance it is possible that this may go no further, that this guidance will be quietly ignored. However, if this were made statutory it would effect public spaces, schools, workplaces, clubs, sporting facilities, and other important places across the UK, and would become one of the biggest rollbacks on equality rights and protections that we've ever seen, and would turn Britain into a country that practices segregation and discrimination.
It is also worth considering how such guidance would be implemented. If made statutory it would require that any space offering single-sex facilities for men and women would then have to provide another space for trans people. Would every business and public space be expected to spend thousands to build these new facilities, would trans people simply be lumped into disabled spaces, or would places simply make all of their facilities gender neutral, thereby sidestepping the issue? If it's the latter option, which would likely be the cheapest and easiest of them, it would seem that the transphobic position of 'protecting women's spaces' would have failed by effectively removing many of them from existence.
The new interim guidance doesn't just talk about single-sex spaces, however, and goes on to talks about clubs and organisations that consist of twenty five members or more, and specifically uses queer spaces as an example. It instructs that lesbian only spaces should not admit trans women, and gay spaces should not admit trans men, effectively trying to police the queer community and telling us what is and isn't acceptable for the gay and lesbian community.
Despite this guidance being less than a day old it has already been declared as a human rights disaster by multiple groups and individuals, particularly by members of the trans community and their allies, who have compared it to racial segregation, and apartheid. It would also seem that the EHRC has overstepped what was laid out in the Supreme Court ruling. But for those of us who are aware of the EHRC's past stance on trans people this comes as little surprise. The EHRC has been condemned by queer rights groups on multiple occassions for its overtly transphobic policies, and there have been multiple leaked documents that have revealed they have been working in opposition to the trans community. More on this can be found at TransActual.
Whatever becomes of this interim guidance, whether it's rolled back, or if it becomes statutory, it's clear that this is only the beginning. We're barely more than a week beyond the Supreme Court ruling and we've already seen an increase in anti-trans sentiment, the news media have praised the ruling and demonised the trans community, and more anti-trans guidance is being pushed. This is only the beginning of this fight, and things could get much, much worse from here; but there is also a fight back happening. There are pro-trans protests and demonstrations happening across the UK on an almost weekly basis. The trans community has mass support, and we are loved, even if it doesn't seem that way.
It's easy to be disheartened by this news, and everything else that's been happening. I've been going from feeling absolutely without hope to being ready to fight this every day. There are times when I think that it's pointless, and that there's no way to win, but then I see the support we have, I see the action being taken to protect us and our rights and it restores my hope. Don't give up. Keep fighting. This is going to be a long, dark road, but we will make it through.
Update: Robin Moira White, Discrimination Barrister, and first barrister to transition in the UK, has claimed that the new guidance from the EHRC appears to 'be in potential breach of Articles 3,8, and 14 of the European Convention of Human Rights, and as such the guidance should not be followed.
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