Single sex toilets must exclude transgender people, says EHRC

While campaign groups continued to digest the 340-page document on Thursday evening, early responses reflected continued divisions over how to interpret the supreme court ruling.

The Trans+ Solidarity Alliance director, Alexandra Parmar-Yee, said the guidance was “a section 28 moment for this Labour government” and “worryingly similar to a US bathroom ban condemned by the UK Foreign Office in 2016.”

“The law here is a mess, and clearly many businesses will just go gender neutral to avoid the headache, but the government risks pushing trans people yet further out of public life.”

For Women Scotland, the gender-critical campaign group that brought the original case to the supreme court and has heavily criticised the length of time taken by the UK government to review the code described this was “a significant milestone in ensuing women’s rights are upheld and protected across the UK”.

Co-founder Susan Smith said: “Hopefully, this will put an end to the unjustified excuses and delays in implementing the supreme court ruling. There is now no reason for public bodies and organisations to evade their responsibilities to women.”

The updated code of practice for service providers, associations and those delivering public functions – which remains in draft form – was laid before parliament by the equalities minister, Bridget Phillipson, on Thursday afternoon. MPs now have 40 days to consider the document before the minister issues a final order and it comes into force across England, Scotland and Wales.

In a written statement, Phillipson said the draft code’s content on sex and gender reassignment had “changed substantially” in light of the supreme court’s judgment and thanked the commission for its work ensuring the document was “accessible and provides a wide range of examples for duty bearers”.

Many businesses have raised concerns that the required changes could undermine inclusion, and be unworkable, for example, in hospitality, where venues differ drastically in terms of size, space and age of buildings.

The code gives the example of renovation to a shopping centre. The management recognises that providing only male and female toilets would disadvantage trans users and could cause safety risks and distress if they were required to use toilets designated for those of the same biological sex. “The service provider therefore decides to also provide toilets in individual lockable rooms with hand basins, which can be used by people of either sex.”

This cost would be borne by the business itself. When the Equality Act 2010 was passed, the impact assessment estimated costs in the first year alone could amount to more than £300m.

Another example concerns a community advice centre with single-sex toilets extending the use of its accessible toilets to trans people. The code advises the group to monitor whether this arrangement has any negative impact on both trans and disabled people. Disabled rights campaigners have previously told the Guardian they were watching “in horror” as the trans community faces similar toilet segregation and exclusion from public spaces that they do.

The guidance states that while it is unlikely to be “practical or appropriate” to question an individual using single sex facilities, such as toilets, about their sex, it may be legitimate if concerns are raised about that person’s “physical appearance, behaviour or concerns raised by other service users”.