Time to take the heat out of the trans debate

The concept of equality and human rights enshrined in law for all is a relatively new one. In Britain, it took until the mid-1970s for wide-ranging protections to be put in place to prevent discrimination on the grounds of sex and race. Disability discrimination legislation didn’t arrive for another 20 years after that, with the Gender Recognition Act following in 2004.

The Equality Act 2010 brought together all the different protected groups, whose rights had been hard-won over the centuries, under a single piece of landmark legislation. As regulator of that Act, our mission at the Equality and Human Rights Commission is to uphold these protections.

With nine different protected characteristics to consider, each with their own interests and needs, it is inevitable there will be occasions where some rights overlap. It is the EHRC’s role to balance those. One such example is the provision of single-sex spaces. The law is clear that organisations can sometimes limit access to their services to one sex, just as it’s clear that trans people have the right to live their lives free of discrimination in the gender they identify with.

To judge by the often toxic tone of debate in the media or online, you would be led to believe the public are polarised on this topic. In reality, focus groups and opinion polls show there are more areas where we agree than disagree. The British people, with a characteristic sense of fair play, understand this is a complex issue and that each situation requires a balanced approach and careful consideration.

At the same time, we recognise this is a sensitive area to navigate. with real impact on people’s lives. so the EHRC has this week published practical guidance to assist providers of single-sex services.

This is not an intervention on the wider debate about sex and gender identity, but an effort to help organisations such as sports clubs, women’s refuges and rape crisis centres to understand exactly what the Equality Act says. It will also help employers and businesses, who want to know they are providing toilets and changing facilities for their staff and visitors appropriately.

We do not make the law, but it is our regulatory function to uphold it, independent of government, campaign groups or vested interests.

The Act confirms that, while you must not discriminate against someone due to their protected characteristics, there are exceptions which allow organisations to limit services to a certain group, provided the reasons are justified. The reasons could be for privacy, decency, to prevent trauma or to ensure health and safety.

Equally, it can be perfectly legal and appropriate for organisations to open their services to all groups. Our guidance urges service providers to adopt flexible policies that balance the needs of all users, based on their specific circumstances. This is the best way to ensure that women, girls and trans people are all treated fairly. Occasionally competing rights need not mean conflict.

Issues of sex and gender identity have dominated discussion since my appointment as EHRC chairwoman in December 2020. But there are still so many other areas where the scourge of discrimination persists and debates can be polarised. Last week, we launched a three-year strategy to tackle some of these, including discriminatory practices in the use of AI, fair access to education and healthcare post-Covid, and relationships between different communities.

I am therefore urging people, whatever their sincerely held views, to lower the temperature of debate and work constructively with us to achieve a fairer society for all.

Baroness Falkner is chair of the Equality and Human Rights Commission

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