Labour MPs are increasingly sceptical about the workability of guidance issued by the Equality and Human Rights Commission (EHRC) on implementing the Supreme Court's ruling that sex in the Equality Act refers to biological sex. Concerns are mounting that the code of practice could unleash a wave of competing legal claims and negatively impact transgender people.
Commons Motion Against Guidance
A total of 135 MPs, including 69 from Labour, have signed a Commons motion calling for the code of practice to be blocked. The motion primarily reflects worries about the guidance's effect on transgender individuals. Although it is unlikely to stop the guidance—requiring a government vote that has been refused—backbenchers are urging ministers to consider new legislation to address the issue.
Practical Concerns Raised
After EHRC chair Mary-Ann Stephenson and chief executive John Kirkpatrick faced questions from the Commons women and equalities committee, concerns intensified. While some committee members praised the EHRC for protecting women's single-sex spaces, others highlighted practical challenges.
The guidance, following last year's Supreme Court ruling, states that trans people should not use facilities like toilets and changing rooms for the gender they live as, and in some cases not even for their biological sex. Instead, gender-neutral "third spaces" should be provided where possible.
Labour MP Kevin McKenna, a former nurse, questioned how trans patients in hospitals could be cared for in gender-neutral side rooms, which are scarce and often needed for clinical reasons. After the hearing, McKenna said the code "may not survive contact with reality," adding: "This guidance is not ready, not practical, and not safe to implement. It will lead to terrible situations for trans people and their friends and families. It will not make life any safer for anyone else."
Impact on Trans Individuals
Several MPs reported being contacted by trans constituents worried about hospital wards. One backbencher said: "Several people have told me they are actively avoiding seeking medical care over fear of what ward they will be put on. One trans man said 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 subjective and warning that organisations fear being sued if they get it wrong. The MP noted: "Mary-Ann Stephenson kept talking about 'common sense.' You can’t operate that way because it’s completely subjective. Organisations will be worried they will be sued if they get it wrong."
Growing Opposition
The spread of signatories on the motion shows broad worry within Labour, according to one MP: "Looking at the list, it’s not just a mix of the left and right of Labour, but it’s people from surprising bits of the left and the right. The concern is really cutting through."
Another Labour backbencher said the situation felt unworkable even after the government worked with the EHRC to expand the guidance. "It doesn’t seem logical that we have introduced this system where we can challenge people on the way they look on whether or not they can use certain services. Because it’s so unclear what people should do, it feels like it has opened the door to a series of legal challenges."
Next Steps
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: "We understand that there are a lot of strong views on this, but we have tried very hard to make the guidance as workable as possible, and ensure it is legally robust, with as many examples as possible for service providers to follow. But it cannot cover every single legal eventuality."
