We, the undersigned, are writing to express our concerns following the issuance of an interim update by the EHRC on the practical implications of the Supreme Court judgment on FWS Ltd v The Scottish Ministers.

As members and allies of the LGBT+ community across the UK, and as friends, allies, and members of the UK’s trans community, we are deeply troubled by aspects of EHRC’s interim update, issued last month. It is our view that, as it stands, the update has created more questions than it has resolved for service providers and trans people attempting to safely navigate public spaces. It additionally increases the risk that transgender and gender nonconforming people will be subjected to harassment, discrimination, and exclusion from vital services.

We therefore wish to raise the following for your consideration:

1. The Supreme Court has ruled that the exclusion of transgender people from single-sex services, including those with a Gender Recognition Certificate, is permitted provided that it is a proportionate means of achieving a legitimate aim. However, we do not believe it to necessarily follow from the ruling that service providers are obliged to exclude transgender people from all such services (a perspective supported by former Supreme Court Justice Lord Sumption), despite the interim update claiming this to be the case.

2. The update as it stands is unenforceable, and will lead to the marginalisation and harassment of gender nonconforming individuals, as people attempt to ‘police’ the restrictions placed upon trans people accessing the facilities of their acquired/affirmed gender. Cis women using the women’s toilet, but who have features perceived as masculine, may be subject to discrimination and abuse as a result, and indeed a number of instances of this occurring have already been reported.

3. The interim update ordinarily mandates that trans people use, for example, the toilet facilities corresponding to their biological sex at birth. This means that trans men will be forced to use women’s toilets, despite many ‘passing’ as their acquired/affirmed gender. This creates a situation in which people who are perceived and present as male must use women’s facilities, which will lead to more confusion and abuse directed towards trans individuals, as well as potential confusion for cis women.

4. The interim update also states that trans people may be at once excluded from both men’s and women’s facilities. In such a case, if there is no alternative provision,  and if facilities are available to cis men and women, would trans people have a claim for discrimination under the protected characteristic of gender reassignment? The update says that such exclusions can be made ‘in some circumstances’, but fails to enumerate what these circumstances are.

5. The update does not set out how service providers are supposed to enforce the exclusion of trans people from single-sex spaces. What arrangements are service providers entitled or encouraged to put into place in order to enforce these exclusions? If service providers are entitled to remove someone from a facility on the basis that they believe the individual to be a biological man/woman, what would be the result if it later transpires that they were mistaken in that belief?

6. If service providers have a process in place for determining whether a person is of the biological sex entitled to use a particular facility, must this process be applied to all users, or can it be targeted towards service users who are perceived to be gender nonconforming? If it is targeted, it seems that this will lead to discrimination under the protected characteristic of gender reassignment, since it will necessarily lead to trans men being challenged when using women’s toilets in a way that other service users are not.

7. May associations and services only be either completely mixed-sex or single-sex? If, under the current recommendations, an association wished to offer membership only to women (both trans and cis), and their membership was in agreement with this arrangement, would this be permitted? What would be the consequences for such an association if not? Would such an association be forced to exclude trans women, against the wishes of its membership?

8. What designates a single-sex space? In the case of toilets, for example, if they are labelled as male and female, must they necessarily become single-sex as a result, or are service providers entitled to interpret these as suggestions? If they must automatically be single-sex, what are the consequences for a service provider which fails to enforce the exclusion of trans people from these places? Relatedly, and to reiterate what has been stated previously, what measures are reasonable for the enforcement of such exclusion? What are the consequences for a service provider which erroneously excludes a cis woman from the women’s toilets on the basis of her gender nonconformity?

9. To take one example, the British Transport Police have announced that strip searches of trans women are now to be conducted by male officers, and strip searches of trans men are now to be conducted by female officers. If male BTP officer strip searches a cis woman, assuming her to be trans, what would the consequences be? Would this function as indirect or direct discrimination under the protections afforded to her by the Equality Act?

On account of the above concerns, among others, it is our belief that the interim update as it stands is unworkable and unenforceable. Furthermore, it fundamentally undermines the ability of trans people to go about their lives as law-abiding citizens without being subject to increased levels of harassment, abuse, and discrimination. 

This comes in a context of increasing hatred and violence directed towards trans people, with anti-trans hate crimes consistently increasing year-on-year. Such a situation is incompatible with the dignity, privacy, and equality that trans and gender nonconforming people, as human beings, are entitled to.

We are therefore calling on the EHRC to immediately withdraw the interim update that has been issued. Ahead of the issuance of finalised statutory guidance, the EHRC should consult as widely as possible with trans community organisations and individuals, who will be impacted by the decisions it is making. In order to facilitate this, the consultation period should also be extended from 6 weeks to 12 weeks, in line with the Cabinet Office guidance on consultations. We hope that the EHRC will undertake to properly consider the safety and dignity of trans people in future versions of its guidance.