The Equality and Human Rights Commission's draft code of practice, published in the wake of the Supreme Court's ruling in For Women Scotland Ltd v The Scottish Ministers, is built on a single premise: that trans women are not women. Everything that follows from that premise is wrong, and the draft code is wrong because of it.
MP Nadia Whittome put it clearly and correctly when she said that the code effectively pushes trans people out of public life, subjects all women to gender policing based on stereotypes, and fails to give organisations the clarity they actually need. She is right on every count.
What does the draft code actually do?
The EHRC's draft guidance, which does not carry the force of statute and has not been finalised, interprets the Supreme Court ruling as requiring organisations to exclude trans women from women-only spaces. But the Supreme Court did not create new law. It offered one interpretation of the Equality Act 2010, an interpretation that many legal commentators, equality organisations, and human rights advocates argue is inconsistent with Parliament's original intention when it passed both the Gender Recognition Act 2004 and the Equality Act 2010.
The draft code goes further than the ruling itself and in doing so causes real harm, to trans people, and to women who are not trans.
It fails trans people
Trans women who have lived as women for years, in some cases decades, who hold a Gender Recognition Certificate recognising their acquired gender, are told by this guidance that they may be lawfully excluded from women's spaces. That is not a minor technical adjustment. It is the removal of people from public life on the basis of who they are.
It fails all women
The draft code does not just harm trans women. It harms every woman, because it puts in place a system of verification based on stereotypes. Who decides whether a woman looks like a woman? What does that mean for women who are masculine-presenting, women with certain medical conditions, women who simply do not conform to a narrow visual idea of femininity? Gender policing at the door of a toilet or a coffee morning does not protect women. It surveils them.
It fails organisations trying to do the right thing
The guidance also fails the organisations that most need clarity. A charity running a women's coffee morning open to the public cannot, under this guidance, be trans inclusive without opening the event to everyone. That is not a workable position. It does not help organisations be inclusive; it punishes them for trying.
Draft guidance is not law
The EHRC's code is draft. It is overdue and it has not been finalised. Draft guidance, advisory guidance, and consultation documents do not carry the weight of statute. Organisations are not legally required to follow it, and many equality and human rights bodies are contesting it. The Equality Act 2010 still protects trans people under the characteristic of gender reassignment. That has not changed.
The code should be withdrawn and rewritten on a foundation that actually reflects equality law as Parliament intended it, one that includes trans women rather than legislating them out of public life.