EHRC Revises Single-Sex Space Guidance Under New Leadership's Pragmatic Approach
The Equality and Human Rights Commission is currently adapting its guidance on implementing the Supreme Court's landmark ruling on gender definitions, with a renewed focus on balancing the protection of single-sex spaces while minimising negative impacts on transgender individuals and businesses. Exclusive information reveals that lawyers from the EHRC are engaged in detailed discussions with government legal teams regarding the practical application of last year's judicial decision, which established that the legal definition of a woman is based solely on biological sex.
A Constructive Shift in Tone and Methodology
Observers have noted a significant change in the EHRC's approach since Mary-Ann Stephenson assumed the role of chair late last year. While formal changes to the submitted code of practice require ministerial rejection and request for amendments, Stephenson's leadership is characterised as more open to dialogue and pragmatic considerations than her predecessor, Kishwer Falkner. Government sources have confirmed that interactions with the watchdog have become notably more constructive under this new stewardship.
"We have to get this right, and this takes time," one government insider commented. "But it is fair to say that we are finding the EHRC more constructive under the new chair than the old one." This collaborative spirit aims to create guidance that is both legally robust and practically implementable, avoiding the excessive costs and operational confusion that businesses might otherwise face when modifying facilities like toilets and changing rooms.
Addressing Past Concerns and Future Legal Challenges
The revision process follows the withdrawal of interim advice issued under Falkner's oversight, which had raised substantial alarm. That earlier guidance suggested transgender people might be excluded from using public toilets aligned with either their lived gender or birth sex, prompting concerns about effectively barring them from public life. Falkner had frequently criticised ministers for delays in implementing the subsequent code, despite reservations from officials and some Members of Parliament about its potential ramifications.
Several MPs, including many from the Labour Party who had warned against an overly literal interpretation of the initial guidance, have expressed reassurance about Stephenson's direction. Rachel Taylor, a Labour MP serving on the Commons Women and Equalities Committee, stated: "The EHRC's interim guidance was disproportionate, unfair, and unworkable, so I would welcome efforts by the government to work with the new EHRC chair to ensure the final guidance upholds the rights of women and trans people and can reasonably be implemented by businesses."
Ensuring Legal Robustness and Political Sensitivity
Officials emphasise that the guidance must be legally watertight to withstand potential judicial review challenges. There is also a strategic consideration to await the outcome of a High Court challenge brought by the Good Law Project against the EHRC's response, as this verdict could influence the legal landscape. Education Secretary Bridget Phillipson, who also holds the equalities portfolio, has faced criticism for the publication delay, with some suggesting political motivations to avoid displeasing Labour MPs. However, the government maintains that thorough review is essential.
A government spokesperson confirmed that ministers are reviewing the EHRC's code of practice "with the care it deserves, engaging with the EHRC to ensure that it provides clarity for service providers." Meanwhile, an EHRC spokesperson affirmed their confidence that the updated code is "both legally accurate and as clear as it is possible to be," noting they await official approval from Phillipson's office.
The evolving guidance does not dilute the government's stated commitment to single-sex spaces, which remains a central outcome of the Supreme Court ruling. Instead, it seeks a more nuanced application that respects women's rights while adopting a pragmatic approach to limit adverse effects on transgender people and commercial enterprises.
