A growing number of Labour MPs have expressed doubts that the Equality and Human Rights Commission (EHRC) guidance on implementing the Supreme Court's ruling on biological sex is workable in practice. The guidance, approved last month, follows the court's decision that sex in the Equality Act refers only to biological sex, and sets out that trans people should not be allowed to use single-sex facilities such as toilets and changing rooms for the gender they live as, and in some cases also for their biological sex. Instead, gender-neutral 'third spaces' should be provided where possible.
A total of 135 MPs, including 69 from Labour, have signed a Commons motion calling for the code of practice to be blocked, primarily due to concerns about its impact on transgender people. While it is unlikely the guidance will be stopped—as that would require a government vote, which has been declined—backbench pressure is mounting for ministers to consider new legislation to address the issue.
Concerns increased after EHRC chair Mary-Ann Stephenson and chief executive John Kirkpatrick were questioned by the Commons women and equalities committee last week. Labour MP Kevin McKenna, a former nurse, questioned whether trans patients in hospitals could be cared for in gender-neutral side rooms, given these are scarce and often needed for clinical reasons. He said the code 'may not survive contact with reality' and would lead to 'terrible situations for trans people'.
Several MPs reported that trans constituents are avoiding medical care due to fears about ward placements. One backbencher said a trans man had stated he would 'rather die than be put on a women's ward'. Another Labour MP expressed concern about the code's reliance on 'common sense', calling it 'completely subjective' and warning that organisations would fear being sued if they got it wrong.
The 40-day period for the code to be laid before Parliament ends early next month, after which it will become law. A government source defended the process, stating that efforts were made to ensure the guidance is 'as workable as possible' and 'legally robust', but acknowledged it cannot cover every legal eventuality.
