LGBT activists have expressed outrage after the Equality and Human Rights Commission (EHRC) clarified that men who identify as women can legitimately be excluded from female-only spaces.
Areas such as changing rooms, fitness classes, refuges and rape counselling clinics may reasonably require that the spaces are explicitly reserved for biological women in order to protect those women’s dignity and privacy. Consideration is also given for religious belief.
The guidance extends to hospital wards, but transgender NHS equality chief Tara Hewitt, who was born male but now lives as if a female, called on other senior NHS officials to “ignore” the legal opinion of the human rights body by “putting it in the bin”.
The new guide tells service providers they may only exclude a transgender person from a single-sex space if it is “a proportionate means of achieving a legitimate aim”.
Such legitimate claims could include “reasons of privacy, decency, to prevent trauma or to ensure health and safety”.
It gives examples which illustrate how the law might be applied appropriately, explaining that biological males may be excluded from domestic abuse refuges if the women they serve “feel uncomfortable sharing accommodation… for reasons of trauma and safety”, but that the refuge should be able to direct the transgender person to an alternative form of support.
Similarly, transgender people could be excluded from using single-sex changing rooms in a gym if there is “concern about the safety and dignity of trans men changing in an open plan environment”, but the gym might consider introducing “an additional gender-neutral changing room with self-contained units”.
After Tara Hewitt labelled the guidance “transphobic”, other officials have also said they will be ignoring it, including Stuart McKenna, a senior HR professional for the NHS, who said: “This guidance will not be forming part of my teams [sic] advice”.
Hewitt also shared a tweet by the NHS Trans Network, which said: “We urge all NHS Equality Teams to ignore this transphobic & hostile guidance from EHRC”, claiming the guidance “is likely to be found unlawful at judicial review”, and that equality teams should “continue to write & follow trans inclusive policies”.
The Chief Executives of Liverpool Women’s NHS Foundation Trust, Kathryn Thomson, and University Hospitals of Morecambe Bay NHS Foundation Trust, Aaron Cummins, both said they would ignore the guidance, as did the Chief Medical Officer at the East London NHS Foundation Trust, Dr Paul Gilluley.
But a spokesman for Health Secretary Sajid Javid said: “The health secretary welcomes the EHRC guidance and he is going to ask the NHS to take it fully into account as part of the review into same-sex wards.”
‘Dignity and privacy’
The guidance was welcomed by women’s group Sex Matters, which described it as a “positive” step, with Executive Director Maya Forstater saying: “It recognises that people wanting single-sex services for reasons of privacy, dignity, safety or trauma have legitimate needs. It doesn’t call them bigots or transphobes, or accuse them of ignorance or bigotry.
“It gives service providers clarity that it is lawful to provide services for men and women separately and to expect people to follow the rules.
“Stonewall has been telling organisations that they have to replace sex with gender identity and that anyone who disagrees is a bigot, but the EHRC is going back to the Equality Act.
“The new guidance provides examples of how trans people can be included without undermining other people’s dignity and privacy (for example with ‘gender-neutral’ options), and says that everyone should be treated with respect.”
The guidance also indicates that churches may be justified on grounds of its members’ beliefs in asking all users to use the toilets that correspond with their biological sex or use a separate unisex facility.
In outlining a “proportionate means of achieving a legitimate aim”, it provides the example of a community centre which – after conducting a survey – discovers some service users would not use the centre if single-sex toilets were open to members of the opposite sex “for reasons of privacy and dignity or because of their religious belief”.
In response, the centre decides to introduce an additional unisex toilet, and then puts up signs “telling all users that they may use either the toilet for their biological sex or to use the gender neutral toilet if they feel more comfortable doing so”.