Vic Valentine: Why UK government must intervene on new single sex space guidance

The Code will provide authoritative guidance on how services, public bodies and public venues across Britain should operate single-sex spaces and services, and how they should treat trans people who need to use them. The guidance is being updated following April’s Supreme Court ruling that “sex” in the Equality Act 2010 always means someone’s “biological sex” – or the sex recorded on their original birth certificate.

Having seen the version the EHRC consulted on, I think it is fair to say that if it became the new way that places like public toilets, hospital wards and emergency homelessness accommodation treated trans people, this would have a devastating impact on trans people’s ability to go about our lives – both when popping to a local café, or in times of crisis.

Following decades of an understanding of the law (and legal cases to back it up) that said that trans people should be treated in line with who we truly are, unless there was a substantial and important reason to treat us differently, instead we will find ourselves banned from the spaces and services we have used for years. Required either to use those that match our “biological sex” – no matter how distressing or inappropriate that may be. Or to use some separate space – no matter what it says about our society that we have deemed a whole group of people so radioactive that we must be shut away from others.

And this is not some irrational fear – trans people have already reported facing harassment, discrimination and abuse as the result of changes that some organisations have already made following the Court’s ruling. And the harm does not stop with us. Even people who aren’t trans – particularly women – have reported increased scrutiny and harassment when trying to go about their lives because they may not “look like a woman” (whatever that is supposed to mean). A range of organisations have been sounding the alarm about just how harmful these changes could be and questioning whether they are really what is required because of the ruling. The Scottish Human Rights Commission have said they “are concerned that basic rights to dignity and respect for all may be undermined”. This is after 18 UN Experts highlighted that the ruling “may be used to justify exclusionary policies that further stigmatise and marginalise an already vulnerable population.”

Despite these significant concerns the guidance, which will have legal weight, may become the official advice of the EHRC with no opportunity for MPs to ask questions or propose changes. Because although the process for approving the guidance means that it must be laid at Parliament, there is no sure-fire way of it getting time for even a debate, let alone a vote.

I hope that the UK Minister for Equalities Bridget Phillipson, who must approve the code, will intervene to say that this is not how trans people should be treated. But a decision of such importance should not be in one person’s hands. At least one MP has already made this case – and I hope many more will when they return to Westminster this week.

Vic Valentine is manager of Scottish Trans