More than 650 organisations including Ben and Jerry’s, Lush and hundreds of small cafes and pubs have written to the government to warn that the Equality and Human Rights Commission’s draft guidance on single sex spaces is “unworkable” and would “cause significant economic harm”, The Independent understands.
The guidance has been drafted after the Supreme Court ruled trans women are not legally women under the Equality Act (2010) earlier this year, a judgment that was hailed as a victory for biological women by gender critical campaigners. But there are concerns that the ruling, and the EHRC’s draft guidance, could leave transgender people excluded from public life.
The draft guidance that was submitted for consultation over the summer warns that if a service is provided “only to women and trans women or only to men and trans men, it is not a separate-sex or single-sex service under the Equality Act 2010”.
The letter – sent to minister for women and equalities Bridget Phillipson and business secretary Peter Kyle – warns that if the final guidance is “similar to this draft”, it would tell organisations that they “must adopt practices that are incompatible with modern business values”.
It calls on Ms Phillipson to “take immediate action to prevent these proposals from moving forward”.
The EHRC has shared its updated code of practice for services, public functions and associations with the equalities minister for approval after a consultation that took place over the summer. But in theory, Ms Phillipson could reject the draft and ask the EHRC to redraft it.
It comes after sources told The Times that the final guidance will tell schools, hospitals, leisure centres and cinemas to ban trans women from using single-sex spaces such as lavatories and changing rooms.
The letter, signed by more than 650 organisations including Ben & Jerry’s, Lush, Lucy & Yak and hundreds of small cafes and pubs, says: “We, the undersigned businesses and organisations, are writing to express our deep concern at proposals seeking to enforce blanket, mandatory exclusion of trans people from gendered spaces and services.
“The proposals made in the EHRC’s draft Code of Practice under the Equality Act would have serious and far-reaching consequences for UK businesses, our employees, and our customers.
“Any final code similar to this draft would tell organisations that we must adopt practices that are incompatible with modern business values, create unworkable operational challenges, and cause significant economic harm.”
It adds: “Many of us have spent years building inclusive environments where all customers and staff feel safe and welcome. These proposals would tell us to act in ways that directly contradict those commitments; undermining trust, damaging reputations, and risking the loss of valued staff and customers.”
They also express concern that the proposals would put them at “constant risk of complaints and litigation from multiple directions”, as well as forcing “business staff into the unacceptable role of ‘gender police’”.
“Such practices are not only deeply invasive, but likely impossible to implement without breaching Article 8 of The Human Rights Act, which protects rights to privacy, and risking discriminating against valued trans customers and colleagues”, they add.
The organisations have expressed concern that for many businesses, compliance with the guidance would mean costly changes to facilities, such as retrofitting spaces or converting them entirely to gender-neutral provision.
“For small and medium-sized enterprises in particular, this financial burden could be severe and would threaten economic viability for some. Compliance costs with this would have a significant impact on businesses across the country, which many can ill-afford”, they said.
Alex Whitcroft, the director of housing developer KIN, told The Independent: “It’s incredibly frustrating, for a small construction sector business like us who uses shared office space and has staff visiting sites with gendered facilities.
“We don’t want to enforce trans exclusion on staff or clients and communities we work with. The proposals are completely unworkable especially for SMEs like us and leave us carrying significant admin cost and risk.”
“We don’t have any desire to implement this and hope the government speaks up and defends small businesses on this”, they added.
Meanwhile, Andrew Butler, campaigns and ethics manager at beauty brand Lush, told The Independent they will do “everything in our power to resist” trans-exclusionary policies.
“We have seen time and again that scapegoating marginalised groups creates nothing but division and stokes fear and violence. We stand with the trans community and all who want to live in a society that values diversity, equity and inclusion.”
Jude Guaitamacchi, founder of the Trans+ Solidarity Alliance said: “The EHRC’s proposals aren’t right for trans people, they aren’t right for business, and they don’t protect anybody. The government needs to hear this message from service providers, businesses and nonprofits that this would be unfair, unworkable and an unforced error harming the British economy.
“Approving a code like the EHRC’s draft would define Labour’s legacy on LGBT+ rights, rolling back the clock and making us an international outlier. Even the worst US states for trans people don’t restrict the inclusivity of private businesses and associations.”
Earlier this month, the chairwoman of the EHRC, Baroness Kishwer Falkner, said it will be “difficult” for service providers to adapt a ruling on the legal definition of a woman “into practical steps”.
She told BBC Radio 4’s Today programme: “I think it’s going to be difficult for duty bearers, service providers, to adapt a ruling which is quite black and white into practical steps according to their own circumstances and their own organisation, which is why we’ve always emphasised they should take their own advice as well as adhering to our code.”
A government spokesperson said: “The EHRC has submitted the draft updated Code of Practice for Services, Public Functions and Associations to the Minister for Women and Equalities.
“The government will consider the draft updated Code and, if the minister approves it, lay it before Parliament.”
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