Following the publicity about its plans for guidance regarding single and separate sex spaces, the EHRC has released a carefully worded statement. In it, the EHRC states:
“It is completely false to suggest that we are looking to bar trans people from accessing spaces without a Gender Recognition Certificate. We are not aware of any document produced by the EHRC that would support this.”
Based on the legal positions adopted by both the EHRC and ‘gender critical’ feminists (whose positions they have wholeheartedly adopted), we think that in a literal sense this statement is likely to be true. However, our expectation is that the EHRC will
1) State that blanket bans on trans people without GRCs using single and separate sex services are lawful - in direct contradiction to assurances given to the Trans Legal Project in June 2021 by the Joint Acting Chief Executive of the EHRC.
2) Warn organisations that a failure to enact such a blanket ban would leave these organisations open to claims of indirect discrimination on the grounds of sex.
This would be consistent with the story in Vice stating that the unpublished guidance
‘advised businesses and other organisations such as shops, prisons and gyms to “protect women” by barring most trans people from their single-sex spaces, including toilets, wards and changing rooms.’
The effect of such guidance would be a de facto ban on trans people without GRC’s using single and separate sex services that match their acquired gender. Businesses and service providers would be pressured into imposing bans themselves, for fear of facing court action from 'gender critical' activists, supported by the EHRC. We have no doubt that that opponents of trans people's human rights would move quickly to threaten businesses and service providers with this, focussing on those with a high public profile who were trying to continue to be inclusive of trans people.
We call on the EHRC to repeat the assurance it gave us in July 2021 that any blanket ban on transgender people without GRCs using single and separate sex services that match their acquired gender put in place by an organisation is unlawful. We also call on the EHRC to guarantee that no guidance it is about to issue will attempt to state otherwise. This would end the concern expressed on social media and elsewhere about its intentions.