Trans people could be forced to present passport to access toilets

Trans people could be forced to show their passport to get into public toilets, if proposed changes take effect.

Suggested changes to the Equality and Human Rights Commission’s (EHRC) code of practice, surrounding services, public functions and associations, could force trans people to take ID with them into single-sex facilities, including changing rooms and toilets.

Changes to the non-statutory guidance were shared by the EHRC as part of a public consultation into single-sex provision guidance, launched on Tuesday (20 May) in the wake of the UK Supreme Court ruling that the 2010 Equality Act’s definition of a woman did not include transgender women.

The ruling, handed down last month, deemed that the definition of “women” and “sex” in the legislation referred to “biological women” and “biological sex”. Announcing the verdict, Lord Patrick Hodge said the judgement should not be read as the triumph of one side over the other, and he stressed that the law still gave protection against discrimination to transgender people.

Since then, the EHRC, whose main duty is to issue regulatory guidance based on the Equality Act, has begun consulting on several of its provisions, having shared interim guidance in April which called for trans people to be banned from all gendered toilets, even those associated with their “birth sex“.

EHRC chairwoman Baroness Kishwer Falkner said the proposed changes were “vital, to allow service providers, such as shopkeepers, gym staff and staff in public facilities, to “know what they need to do to comply with the law”.

If adopted, the guidance, while not legally enforceable, could be used to create new legislation.

The code of practice now recommends that trans people should only use spaces consistent with their birth sex, while making several further provisions for gender recognition certificates (GRC), which can be used by trans people to legally change their sex in the UK.

Updated clauses make it clear that trans women would be seen as men, and trans men as women, “whether they have a GRC or not”.

One of the clauses in Chapter Two of the code says documents such as a GRC or birth certificate would not be sufficient if a trans person was asked by a service provider for a form of ID, because GRCs can be used to amend birth certificates.

This means that trans people could, in effect, be forced to not only carry their passports with them at all times, but also have a copy of their GRC if a service provider required “confirmation as to whether a person has a GRC”.

Another clause points out that a person’s birth sex should “only [be questioned] where necessary and justified” because it violates Article Eight of the European Convention on Human Rights (ECHR), which outlines respect for private and family life.

Service providers who disclose information about whether a trans person has a GRC, without their consent, could be committing a criminal offence under the Gender Recognition Act, the code of practice warns.

Chapter 13 adds a section justifying why trans people should be excluded from gendered facilities.

Service providers “must be able to demonstrate” whether excluding trans people “is a proportionate means of achieving a legitimate aim,” which includes the “safety of women or the privacy and dignity of women and/or men”.

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