Peers raise questions about Equality Act 2010 Code of Practice

The Code of Practice, produced by the Equalities and Human Rights Commission (EHRC) and laid in Parliament on 21 May, makes it clear that single-sex spaces must be used on the basis of biological sex, and that transgender people should instead be offered a third or a gender-neutral space.

It recommends that gender-neutral changing rooms should offer self-contained, lockable spaces with floor-to-ceiling walls.

The draft Code of Practice comes following the Supreme Court judgment which said that, for the purposes of the Equality Act 2010, sex means biological sex.

In its 5th report of Session 26-27, the House of Lords Secondary Legislation Scrutiny Committee raised the following questions about the Code of Practice:

• “The draft Code covers the provision of single-sex services and outlines the circumstances in which it may be legitimate to ask individuals to provide confirmation that they are of the eligible sex or to exclude individuals from accessing such services. Given that decisions to question individuals may be based on appearance, but that there is no official record or document in the UK which provides reliable evidence of sex, how will this work in practice?
• The costs associated with necessary changes to service user facilities such as toilets and changing rooms will impact a range of organisations that provide services or public functions. How will the impact on the services sector, small businesses and voluntary bodies in particular be monitored?
• The draft Code may have a negative impact on those with the protected characteristic of gender reassignment and on relations between people who share particular protected characteristics and those who do not. How will the impacts on groups and relations between groups be monitored?
• To bring the draft Code into effect two further instruments are required: an order to commence the new Code and another to revoke the existing Code. Why has the existing Code not yet been revoked and what is the timetable for laying the revocation order and bringing the revised Code into force?”

Lord Watson of Invergowrie, Chair of the Secondary Legislation Scrutiny Committee, said: “This a complex area in which updated guidance is required to reflect legislative change and new case law, in particular the Supreme Court ruling on the meaning of sex in the Equality Act 2010.

“While the draft Code of Practice is intended to provide clarity for service providers on how to meet their obligations, there are still questions that need to be answered on several aspects of the draft Code, including in relation to its practical operation, cost implications for organisations, and impacts on particular groups. In addition, if Parliament does not reject the draft Code, there are still some steps to be taken before it can take effect and there needs to be a clear timetable for when this will occur.

“If it does come into force, the guidance is likely to be essential for organisations across the country providing services or public functions, including small businesses, charities and voluntary organisations. It is therefore important that the Government addresses the questions posed in our report.”

Lottie Winson