London borough warns new guidance from equalities watchdog creates “legal and operational” uncertainty for councils

The Minister for Women and Equalities laid the code in Parliament in May, but it will only come into effect once it is commenced. It provides practical guidance on how the Equality Act 2010 applies to services, public functions and associations.

The EHRC created the new code following last year’s Supreme Court decision in For Women Scotland Ltd v The Scottish Ministers, which concerned the interpretation of the 2010 Act in relation to gender reassignment and sex discrimination.

In a letter sent on Friday (19 June), Southwark’s deputy leader told the Secretary of State for Education and Minister for Women and Equalities, Bridget Phillipson, that Southwark is "deeply concerned" about the code's impact on trans people in the borough and across the county.

Southwark, which is home to the fifth largest trans and non-binary community in the country, said the approach would be “unworkable” for the following three reasons:

• The expectation around separate or additional provision, so-called "third spaces", is extremely difficult to deliver across a large and varied estate, carries significant cost, and in many settings cannot realistically be achieved at all.
• Relying on such separate provision risks being discriminatory in its own right: it singles trans people out, can expose them to being identified against their wishes, and pushes them out of everyday services and public life.
• The guidance places frontline staff in an impossible position, expected to make and enforce judgements about who may use which facilities without any clear, deliverable or safe means of doing so.

"Taken together, we are concerned the code will marginalise an already vulnerable community, embolden those who seek to make trans people's lives harder, and create legal and operational uncertainty for the very public bodies expected to implement it," Cllr Victor Chamberlain wrote.

The deputy leader urged the Government to pause the draft code in its current form rather than allowing it to come into force.

He also asked the Government to work with the EHRC to revise the code "so that it is genuinely workable for service providers and does not expose trans people to discrimination or exclusion".

Parliament has until the end of the month to review the code - and if Parliament does not disapprove the code, the UK Government will set a date for it come into force.

The EHRC’s Chair, Dr Mary-Ann Stephenson, addressed a number of questions on the draft code in a meeting with the UK Parliament’s Women and Equalities Committee on 9 June.

Responding to concerns that the draft code "furthers the UK’s hostile environment for trans people", Dr Stephenson told the committee: "It is important to be clear that the code is not making new law or requiring bodies to do things that they are not already required to do, particularly following the Supreme Court judgment.

“The section on sex and gender in the code compared to the several hundred other pages on other protected characteristics is relatively small."

She added: "What the code is doing is setting out what the law requires—both the wording of the Equality Act 2010 and subsequent case law, including a Supreme Court judgment—our best understanding of that and how bodies can follow that in order to ensure that they are not inadvertently discriminating against individuals or groups, which is intended to reduce the amount of litigation and make sure people have their rights met.

"What we have tried to be very clear about is that where you are providing single-sex services, you also need to think about the needs of people who cannot or do not want to use them."

Responding to Southwark’s letter, a Government spokesperson said: "The Equality Act enshrines our rights in law so that people can live free from discrimination and harassment. Our focus has always been making sure organisations have clear, accessible guidance on how to implement the law.

“We recognise the strength of feeling on this topic, which many expressed during debates on the draft code in the House earlier this month.

“The 40-day laying period for the draft code will give another opportunity for MPs, as well as the public, to make their views heard, and they will be able to continue to raise questions to Ministers in the usual way during this time."

Adam Carey