The government's draft guidance following the Supreme Court ruling says members of the public do not have the right to challenge one another on sex. It also says that where an individual is asked to confirm their sex, this should be done sensitively. Both sentences appear in the same document. Nobody seems to have noticed the problem.
The guidance that contradicts itself
The guidance says the public cannot challenge each other. It then instructs that challenges should be conducted sensitively. If nobody is doing the asking, the advice on how to ask is advice about nothing. If the advice on how to ask means something, then somebody must be doing the asking, which contradicts the first part. This is not a nuanced legal tension. It is a drafting error so large you could drive a bus through it.
And yet here it is, in official guidance, presented to cafes and restaurants and leisure centres and libraries as something they are supposed to implement.
What a cafe is actually supposed to do with this
Picture the scene. A small café owner in a market town reads that she must not allow members of the public to challenge one another, but that challenges, when they happen, must be sensitive. She rings her local council. The council rings its legal team. The legal team reads the same document and finds the same contradiction. Everyone is confused, and the only people who gain anything from the confusion are the people who wanted confusion in the first place.
Because this guidance did not emerge from a careful policy process. It was rushed out in the wake of a Supreme Court ruling to give the appearance of action. The threat it purports to address, trans women using women's toilets, is not a documented problem. The harm it is causing, trans people being surveilled, challenged, and excluded from public life, is entirely real and entirely documented.
The absurdity is the point
Guidance this internally contradictory cannot be implemented. It cannot be implemented because it does not know what it is trying to say. What it is trying to do is a different question, and the answer to that is: make trans people feel unwelcome in public spaces while giving everyone else plausible deniability.
A government serious about equality would have taken time to produce guidance that was legally coherent, practically workable, and grounded in evidence of actual harm. This guidance is none of those things. It is draft, it is overdue, and it should not be treated as having the weight of law, because it does not. The Equality and Human Rights Commission guidance that followed the ruling carries the same status: draft, contested, and far from settled.
Trans people remain protected under the Equality Act 2010 through the characteristic of gender reassignment. That has not changed. What has changed is that official documents are now being published that manage to contradict themselves before the reader reaches the second page.
If there is a topic that you would like me to cover, just let Sammy know.
Dr Helen Webberley is a Gender Specialist, Medical Educator, and advocate for trans equality.