Good afternoon and welcome to the Women and Equalities Committee. We are holding an oral evidence session on the work of the Equality and Human Rights Commission today, and we are joined by two colleagues from the Joint Committee on Human Rights, Alex Sobel and Dr Peter Swallow. We will hear first from Mary-Ann Stephenson, chair of the Equality and Human Rights Commission, and John Kirkpatrick, chief executive of the Equality and Human Rights Commission. Welcome back, John, and thank you both for coming. This is going to be quite a condensed session. We are expecting votes at around four o’clock, unfortunately, so the longer that you can stay the better, as we have a lot to get through. With that in mind my first question, Dr Stephenson, is: you have been in post now six months. There is a huge issue when it comes to the vastness of the EHRC’s work. With that in mind we are going to be focusing a lot of today’s session on the code of practice, understandably, but it is important to recognise that the EHRC has a broad remit in the equalities and human rights field. We are seeing particularly civil unrest, a lack of social cohesion, racism, increased violence, and misogyny continuing to be prevalent across all our communities. It would be really good if you could outline very quickly and briefly what you have learned from your last six months of the job, and what you have been doing to ensure that you are hearing from a range of groups that experience discrimination such as disabled people, people from ethnic minority backgrounds and religious backgrounds, and those who are LGBTQ+. Each of our Committee members will have eight minutes for your answer as well as their question.

I will try to be succinct. Thank you so much for having me. I would be very happy to come back on another occasion to talk about other aspects of our work, if the focus for today is on the code.

That would be welcome.

The first thing to say, and the thing that really struck me when I started at the EHRC, is that it is a bit like an iceberg: there is a little that you see on the surface. At the moment all the intention really is on the code of practice and a very small section of the code of practice in particular, and actually there is a huge range of work across the Commission, both work that we publicise but also work that we cannot because there are some things under the 2006 Equality Act where we have powers to take action, where that action has to remain confidential and we cannot go into the details about what we are doing. One of my priorities when I came on to the Commission was really to think about how we could build and rebuild our relationship with stakeholders, which is something that I said when I first met you last summer that I wanted to do. I am really pleased to say that so far that process has been very successful. I have had over 70 different meetings with civil society organisations and others, over 100 different organisations across protected characteristics, and we have organised a civil society stakeholder event with Equally Ours, which represents both equality and human rights organisations, and it was very well attended and very well received. I would say that the vast majority of those meetings have been positive. We have not always agreed, but there has been a genuine welcome from the people I have met with of my willingness and keenness to meet with them and hear what they have to say. We have obviously had to be clear that the list of things people suggest we work on, across the range of issues we could work on, is always going to be longer than we have capacity to do.

Would you be able to provide the Committee with a list of the organisations that you have met with?

Certainly.

Thank you. Particularly given the horrific incidents that we are seeing of Islamophobia and antisemitism, have you met with any Jewish members of the community and organisations, and any Muslim groups?

Yes, I have, and that is something that I particularly prioritised. You are absolutely right; that is really important. We are seeing really worrying rising levels of hate and, in some cases, violence both online and on our streets. Under the public sector equality duty fostering good relations is obviously something that is particularly important. We are really thinking about what our role is; particularly around the balance between people’s right to freedom of expression and right to protest, and people’s right to be free from harassment.

We will look forward to getting that list. I am going to hand over to Peter Swallow now.

As I am sure you can imagine, we have lots of questions about the code.

Of course.

First I want to ask you about the broader role of the EHRC, and just take you back to your pre-appointment hearing where my colleague on the JCHR, Afzal Khan, pushed you to ensure that the EHRC under your leadership was carrying out the important function it has as Britain’s independent equality regulator and national human rights institution by carrying out thematic inquiries into human rights issues. You said that that would be very important to do, so could you set out what progress you have made in establishing new thematic inquiries?

At the moment in human rights we have particularly been working on the issue around the balance of rights and, as I said, tensions between the rights of different groups. That was already part of the strategic plan when I started and something that we think is particularly important. Due to the current situation we are in and the rising tensions between different groups, these questions are becoming increasingly pressing.

Is that through a thematic inquiry?

We have three pillars within our strategic plan. One of the pillars is ongoing, more deep-dive work into areas that we think need more sustained focus. So we are looking at disabled people and older people’s access to public transport, discrimination and harassment in the uniformed services, and this issue of balance of rights. One of the issues we have, of which you will be very well aware, is that our budget is constrained and has been at a flat level—a real-terms cut of 20%—in the last few years. Although we are expecting an increase in line with inflation this year that means we have to prioritise that work and those sorts of detailed inquiries are expensive. That does not mean we have not done work in this area. We have done a great deal of work to engage with the Government on their definition of anti-Muslim hostility, for example, meeting with Muslim organisations and, as I said to the Chair, with the Board of Deputies of British Jews to work out what our role is in this space.

I have very limited time so I will just push on.

Of course, sorry.

I asked specifically about thematic inquiries that, as I said, was picking up on your pre-appointment hearing. You mentioned the work you are doing on the balance of rights. I assume that is referring in part to the rights of the LGBT+ community. The ILGA ranks the UK 22nd in Europe for LGBT+ rights, in part because it does not recognise the EHRC as an effective equality body. What work are you doing specifically to look at the rights of LGBT+ people in this country, and address concerns raised by international bodies such as the ILGA?

I would question the description of us as not being an independent human rights body; we certainly are, and this is an area that we work on. Aside from the work on the code of practice, we have work looking at discrimination and harassment in the uniformed services, as I said. That is mainly around sex and race but we will also cover homophobic harassment, for example. There are individual cases that we have supported and work that we have done meeting with organisations representing both LGBT and trans-specific groups. As you can imagine, in the current circumstances most of the conversation has been around the code of practice, but we have also been discussing the Conversion Practices (Prohibition) Bill that the Government intend to take forward, which is something that we support, with protections for genuine counselling and other support. We were talking to people about that last night actually; John might want to add to that.

I would mention one other thing very briefly in two contexts. I cannot remember what the basis of the ILGA rankings is, but one of the issues that we have focused on before and highlighted is the availability of appropriate healthcare for LGBTQ people, both in the context of some PSED compliance work we did with integrated care boards last year, but also in the context of reporting on compliance with international treaties. In both of those instances we have highlighted those deficiencies. That is part of the NHRI role of holding Government to account for the state of affairs we find.

I recognise why so much of the conversation around your work at the moment is focused on the code; I have been involved in making sure that that conversation is ongoing. Do you hope that you will be able to fulfil much more of your function as the commissioner for equalities and human rights, going forward, and much less of a regulatory role?

Yes. While you can see those roles as distinct, they overlap and are not entirely separate. As I said last year, it is important to recognise that we are a regulator, but we are also a champion and part of our role is to make the case for equality and human rights, both more broadly and for particular groups with different protected characteristics. That is certainly something we would intend to take forward and do more work on. As I said, we have had some positive meetings with LGBT organisations about how we can work together.

It is great to see you here, thank you so much for all your hard work on the code of practice; it is really helpful for everyone to have a better understanding of what the law means. I will start with a question on the practical implications of the Government not withdrawing the existing incorrect guidance and taking so long to lay the new code before Parliament. What are the implications of that for both EHRC and people in this country?

As you know, we requested that the Government withdrew the 2011 guidance that is out of date in a number of areas, as you say, not just since the Supreme Court judgment around disability, for example. The important thing to recognise about the code of practice, both this and the 2011 one, is it does not make the law. Courts can refer to it and use it, but if subsequent law means that the code is outdated, then it is the subsequent law that takes precedence. In terms of the deliberations of the courts, they will look at the case law in whatever area. We are very hopeful, now we have this code laid before Parliament, that it will be possible to have the new code and remove the old one. There is a wider question on the issue about how codes of practice work and the fact that it takes a very long time to update them and they cannot be updated as you go. That means that if there is a case that means something in the code has now been superseded by case law, you cannot just simply change and update that. That is something we are looking at in terms of how best to provide guidance and advice.

Did you ever ask the Government to withdraw the existing code that we know is incorrect?

Yes.

Yes, we did. They have not yet done so.

I have a very short question: could you tell us how this code makes people’s lives better?

It sets out clearly what the law says across all protected characteristics, apart from marriage and civil partnership, which relate to employment but is one of the services. It sets out clearly what the law says and gives examples of how you can deliver the law in practice in a way that protects the rights of everybody. So it helps both service providers—people running clubs, associations, and public functions—understand their obligations, and it should also help members of the public understand what they can expect and what is reasonable to ask for.

We recognise that there are certain elements of what we now understand the law to be that disadvantage trans people, compared to what they thought the law was. We have tried to make the code clear about how service providers, for example, can follow the law in ways that protect the rights of trans people. We make it very clear that it would not be proportionate for service providers to be checking the sex of everyone going into toilets where they are ancillary to the main service, for example. We have tried to deal with that because it is really important that the starting point of the code, as in the starting point of the Equality Act, is that people should be treated equally and fairly in a way that enables them to live with dignity. There are exceptions to the general prohibition on discrimination so you cannot discriminate, but there are certain circumstances where that is possible, for example around age and provision of single-sex services.

There are a couple of things here. First, the OEO’s impact assessment went beyond looking at the code to looking at the legislation. There was no evidence provided for some of the things that it said might happen as a result. Those are serious concerns that we need to look at, monitor, and take seriously but what we set out in the code is not us making the law; it is us explaining to people what the law requires. In this instance, where you are providing single-sex services or services separately, that needs to be on the basis of biological sex. We also make very clear that that should not leave trans people without access to services, and we give specific examples of how you could do that.

What is required here is to take a common-sense approach. What the law requires and what our code says is not that people should be judged on how well they perform masculinity or femininity. The actual requirement is whether somebody is male or female. When rules are set, we expect that people will follow those rules, in most instances. As we make clear in the code, the response of service providers has to be proportionate. For example, it would not be proportionate to have somebody checking who goes into toilets, but if you are running a women’s refuge, for example, then it is legitimate to be able to make decisions about who can and cannot come into that refuge if it is a single-sex service.

The thing about a case-by-case basis—

The problem that we get into in this area is people put themselves into a position where they either say that you can always tell, or you can never tell. We are actually in a situation where we know there is no legal documentation that you can ask for to prove somebody’s sex. However, a common-sense approach would understand that, for example, very many women will have had an experience of being in a pub or club toilet where a man has walked in, drunk, and they have said, “Mate, I think you are in the wrong room.” That has been based on physical appearance. We make those sorts of judgments all the time, but we are clear that this is not about how somebody dresses, whether somebody has short hair, or how well somebody performs femininity or not. This is exactly about somebody’s sex and whether they can access services. As I say, we would expect most people to follow the rules.

Dr Stephenson, using that example about a man walking into a women’s toilet absolutely drunk, what is there to stop that man now saying, “I am a trans man.” How can they prove or disprove to the other users of that toilet that they are or are not a trans man?

You have the same argument for what is to stop a man previously walking in and saying, “I am a trans woman and I have an entitlement to be in this space,” because there is no requirement in terms of how people dress or present. There are people who may try to use an excuse to access a service. In actual practice that will be dealt with in a common sense and practical way. The idea that, under the previous setting, nobody would ever misuse the rules, and that, under what we now understand the law to be, the rules are widely open to misuse, is difficult to understand.

There are two things here. First the question of adherence to stereotypes. This is not about stereotypes; it is about what somebody’s sex is: whether somebody is male or female. We have had previous versions of advice and policies set by all manner of organisations that have said people should be allowed to access services based on how they identify or present. That is exactly about their adherence to particular stereotypes, what we are saying—

In terms of common sense stepping in, our code does not cover what members of the public acting in a private capacity do. That is not our job. Our job is to provide guidance for service providers. We have been clear that service providers’ response to this has to be proportionate, and in most circumstances where people have concerns, it is probably better to speak to the manager, the owner, or whoever is on site than to try to take matters into their own hands. But obviously, as I explained, which is similar to what the Minister said, there are common sense situations where people will say, “You’re in the wrong room.”

We have not actually met before, so thank you very much for coming along. The questions and answers we have just heard seem to me to point up the whole basis of the issue that people have perhaps expressed concern over. This common-sense approach and how, or on what grounds, does someone look like a man or a woman, and when do you interject? Once you have said, ”My common sense tells me that this person is not a biological woman,” how do they prove it? How do they then say, “Yes, I am a biological woman and I can use that facility,” if, as you say, there is no certificate or paperwork that they can produce? Surely the whole point of the Gender Recognition Act 2004 and gender recognition certificates was so that we had a way of saying that this person is entitled to use that facility. How do we do it now?

One of the things that the Supreme Court pointed out was that making access to a service dependent on whether you had a certificate, which was confidential, was not a satisfactory way of resolving things. We have an issue that we do not have any documentation that reliably proves sex.

If you do not mind me saying, try and stick to the point.

Nevertheless, we still manage to operate all sorts of single-sex services very effectively because the vast majority of people follow the rules. We have single-sex toilets at the moment; we do not have to check the sex of people going into them. There are organisations that run single-sex violence against women services very effectively at the moment. I fully accept that there is an issue that there is no legal documentation, which is recognised in the code, but it does not mean that these services are not operable.

My point was—to use the terminology of the Supreme Court and the guidance—if a biological woman is challenged when going into a single-sex space for perhaps good reason, on the part that their common sense tells them that this may not be a biological woman, how do we prove that we are?

In most circumstances where people are challenged, as soon as they open their mouths to say something, normally, from my experience, somebody catches a glimpse out of the corner of their eye, is not sure, and checks; somebody says, “Oh, I am in the right place, I am a woman,” and that is fine. That is how things operate all the time right now.

When someone says to you, “Oh, no, I am a biological woman,” how do you know that they are not, when they have just said that?

What we explain in the code is that the decision you make has to depend on the service that you are providing, the seriousness of it remaining single-sex, what the evidence is, if there have been complaints, and all of those sorts of things. But we have operated for decades with legislation that has allowed for single-sex services, and we have managed to deliver those very effectively. There was provision in the original Sex Discrimination Act, which was before the Gender Recognition Act, allowing for single-sex services and we have been able to operate those effectively. By and large it is dependent on people following the rules and then, if they are not followed, on people taking proportionate, sensible and sensitive action. We talk in the code about how you ask, ensuring sensitivity, for example.

I want to follow up specifically on this point about common sense in a bit more detail. If we go back a few hundred years it was common sense that the earth was flat; if we go back 200 years it was common sense that women were far too emotional and sensitive to vote. So I would argue that common sense is not actually that common, and my interpretation of what might be common sense might be very different to somebody else’s. This is a code of practice that is, as far as I understand it, and please correct me if I am wrong, guidance on the practical implications of the law. This new code of practice has come about because of a very high-profile court case. Businesses, organisations, charities and so on will be concerned about litigation and how they can make practical mitigations to avoid very expensive litigation on their watch. They will want to know exactly what using a common-sense approach would look like in practice; that is what they are looking for. In a number of places the guidance talks about people’s comfort. My question to you is: in situations where different groups’ senses of comfort directly conflicts, how does the EHRC expect providers to weigh those competing claims in a consistent and lawful way to avoid litigation? Will the code be supplemented with a clearer decision-making framework to avoid inconsistent or discriminatory outcomes?

There is a lot in there. On your first point on common sense, I would agree; maybe common sense is the wrong term. What I am trying to express is that we have had single and separate sex services for decades and we have not had problems with being able to decide who is and is not allowed into them. The code can only tell people what they can do within the law and we are in a situation where there is no legal documentation that you can ask for to prove somebody’s sex. That is a fact. So we cannot say, “Check for this,” or “Check for that,” because that does not exist. In terms of additional guidance or making things clear for people, the code sets out very clearly what service providers should do in order to avoid expensive and time-consuming litigation across all protected characteristics, as you say. There may be areas in all of them where it is not immediately apparent what somebody’s protected characteristic is, and you might have to ask. There are invisible disabilities. You might not know if somebody is pregnant or their age; you can prove some of those things but people might not have evidence on them on the day for some of them. We are certainly looking at areas where we think additional advice or guidance might be needed, for example around charities where there is particular complexity in the law, and around particular types of services that might have to make difficult decisions following on the code. Just one final point: we did not update this code because of the Supreme Court judgment. Work to update the code started significantly prior to the Supreme Court judgment, and we had actually submitted one version of the code to the Secretary of State before the Supreme Court judgment; we then had to revise it to take that into account.

Under Article 8 of the ECHR people have certain safeguards including personal autonomy, social identity, mental and physical integrity, the right to establish relationships without Government interference, and data privacy. Is your assessment of the code that it is compliant with all those and other Article 8 rights?

Yes. We recognise that in these sorts of situations, for example where you are talking about access to single-sex spaces, you have at least two groups of people with Article 8 rights. For example, trans people with Article 8 rights and women with Article 8 rights in terms of access to services, and they have rights to privacy and dignity and other rights under the Human Rights Act, for example, to be free from inhuman and degrading treatment, and so on. The Equality Act sets out a way of balancing those rights in law that allows for single-sex services where they are necessary and where there are proportionate means of meeting a legitimate aim but also protects trans people against discrimination. In particular where single-sex services are provided, if that disadvantages trans people they may have a case for indirect discrimination. That is why we have talked about alternative provision, and how to do it. The Act does that and that is what we reflect in the code. John, do you want to add something here?

We were very mindful of this exact issue as we were thinking about looking at the Supreme Court judgment, the law as it now is and, indeed, at the code. If we had thought that where the law was or indeed anything in our interpretation was not consistent with Article 8 rights, then we would have been obliged to say so, and we would have said so.

For gender pay gap reporting, will trans people at work be forced to disclose their birth gender, or the fact that they have had a GRC, if that is the case?

I think the guidance from Government on that has just recently changed and gender pay gap reporting is based on biological sex. Is that not right, John?

Do you not think that would breach somebody’s Article 8 rights?

It is about proportionality, is it not? The thing about Article 8 is it is not an absolute right: it can be restricted. Where there is a legitimate aim, for example for the state or businesses to be able to collect pay gap data, then the margin of appreciation around what Article 8 means in practice would allow for that.

This is obviously slightly contested. Are you committed to having an ongoing monitoring of the human rights implications of the code, as our human rights body?

We have an ongoing view across all areas of legislation around where there may be human rights violations; it is certainly something we would be aware of. There is clearly going to be a need to monitor and evaluate the impact of the Equality Act as it is now understood, recognising that there are situations where trans people will no longer be able to access services that they previously thought they had a right to. Whether that right existed or not, the fact that they thought it did is significant. We also recognise there are significant issues for women in terms of being able to access single-sex services and the fact that Article 8 arguments have been used in some recent cases from women where they have been denied access to single-sex spaces.

It goes beyond an opportunity; it is our obligation. We are obliged to keep the body of legislation under review and whether it is consistent with equality and with human rights ambitions; that is the basis on which we periodically advise Government, either at their request or on our own initiative, that this structure of the law may not be right and needs looking at. We do that in a variety of contexts. We absolutely consider it part of our obligations.

As we have already said, this is one example where this might be contested. Given there is a significant body of international case law, including convention cases which are binding on the UK, do you feel that the code will survive challenge in Strasbourg courts?

It has survived challenge so far. The High Court was asked to consider the reasoning behind the code, which was set out in our interim update, and was challenged in judicial review. The High Court found that it was compatible with Article 8. The case law from Strasbourg shows that there is a wide margin of appreciation in this area. There is certainly no case law that would say that Article 8 gives people the right to self-ID into single-sex spaces, and there are very strong human rights arguments for women who would want single-sex spaces. This was obviously in the mind of the Supreme Court when it made its judgment because it referred to the Goodwin case and Article 8 rights, and it was looked at by the High Court, which ruled in our favour.

After the interim guidance, the National Police Chiefs’ Council published a guide for police forces on searching by transgender officers and employees of the police, and searching of transgender detainees. Now that you have published the code, do you feel that that guidance put out for police forces is, in general, compliant with it? In the Q&A section, they wrote, “Can a trans detainee ask for a separate area search depending on anatomical presentation?” The answer given is, “Yes, a trans detainee can ask for a separate area search: one half of their body to be searched by one biological sex officer and the other half to be searched by a different biological sex officer.” Is that particular guidance compliant with the code?

You have a minute and a half on that.

I have not had a chance to read that guidance. I do not know, John, if you have?

I recall seeing it when it was issued but not reading it with the attention that you have necessarily given it. I have two quick observations: first, I am not clear in my own mind to what extent the code, which bears on services, public functions and associations, is actually relevant to the operations of policing. There are some questions about some services that are provided and whether they are actually—

This is your interim guidance, so it is clearly having an effect on police forces.

Yes, and there were a number of cases before the Supreme Court judgment when the practice of police forces and indeed the guidance under which they were operating was questioned and challenged. The fact that the National Police Chiefs’ Council has at least looked at its guidance in the light of the judgment and our interim guidance is quite encouraging. I have not looked at whether it is exactly right in all respects in our view.

It might be worth looking at it after this meeting.

Indeed, and there are many other such things.

Thank you very much for everything you have said so far. I would like to actually build on what Alex was saying about the practicalities of the code. My background is in nursing and healthcare and it is often quite challenging managing single sex accommodations with inpatient services. Balancing those requirements with clinical requirements and operational requirements is not easy or straightforward. What engagement have you had with organisations such as NHS England and the other major health bodies across the UK while drafting this code?

We have not had direct engagement because we did not talk to everybody. We had some engagement with a variety of civil society organisations, parliamentarians and others as we were consulting through both the consultation on the first set of changes to the code in the autumn of 2024 and then the further consultation on the changes in the light of the Supreme Court judgment in 2025. Many of those organisations will probably have responded to those consultations and we will have taken their thinking into account as we did so. As I am sure you know, we had some 500 responses to the first consultation and some 50,000 to the second consultation. We did our best to analyse those and understand what was coming through. The other form in which this may have happened—this may be something that the Committee wants to return to—is that of course the Government are a service provider more broadly in many major fields of public service endeavour. The Government provided us with comments on both draft versions of the code; the first one last summer and the subsequent one more recently. Among other things, I believe those comments were informed by the experience of bits of Government that are actually engaged in service provision. I suspect there has been some input from those forms of territory into the code to date, and we are of course open, to the extent we can be, to talking to some people hereafter.

That is in government elements such as the Department of Health and Social Care, but has that included arm’s length bodies such as NHS England, the Scottish Government, the Welsh Government and so on?

Many have responded to us both directly and through those government processes.

Do you have a process for going back to those organisations for check and challenge to see whether the guide and the code are actually practical?

We expect them to tell us and they do tell us if they think it is not, for sure. There will be other situations in which we will want to go further than just this code. As we have said on a number of occasions over the last few months, because it was under review already, we thought this was a good way of helping to make sure that the changes to the understanding of the law brought by the Supreme Court judgment were properly and fully understood. There is a whole range of parts of human and Government endeavour where those consequences are still being worked through. A lot of what we have put in the code is capable of being read across into other places. In principle we are willing to talk to other organisations, whether it be the NPCC, NHS England or whoever. Our challenge is that we cannot—nor should we—provide legal advice to everybody on how to react to the code in the specific circumstances.

It is not just legal advice. In practical terms professionals on the ground are going to find parts of this very challenging to implement and particularly to have sensitive conversations around someone’s sex in terms of the Supreme Court judgment and balancing that with their transgender and gender recognition status. Is there any opportunity or are you planning on working further to develop guidance—maybe alongside the Royal Colleges and some professional regulatory bodies such as the NMC—to really get into the nub of how we help people on the ground to have sensitive discussions about things that yourselves, as you said, are now tying up with quite complicated bits of data protection law?

We have a long and growing list of areas where either organisations have come to us or we have recognised that further and more detailed sector-specific advice or guidance might be needed. We cannot promise to do all that straightaway because obviously we also have an employment code that is out of date among other things. Even with a code this length, you cannot go into the sort of detail that you might like to for any particular sector; it is a broad overview of what the law requires. You are absolutely right: there is a need for more sector-specific guidance.

With all that feedback you have had so far, if you were trying to implement this in practice—putting yourself in the head of a nurse on a ward and trying to accommodate patients—what would worry you about the challenges from what you have heard back from the sectors already?

I would say that the issues that the health service is dealing with in terms of stretched resources and often situations where there may be understaffing and those sorts of things are potentially an area where it becomes harder to have the time and space to think about having difficult and sensitive conversations. As you recognise, this is an area where people have already had to have difficult and sensitive conversations and there have already been issues about balancing the general demand or expectation from the public that there should be single-sex wards with what happens in practice in a busy hospital.

A situation I can picture from things that I have experienced in the past is where you have one patient who gets very angry because maybe there is a trans person or someone who is gender non-conforming in an adjacent bed and they are having a row, but you cannot share the direct clinical information or any other information. How do you advise clinical and nursing colleagues to handle those situations and on what ground do they stand? Are they standing on solid ground? To be honest, it does not feel like we are from the state of this code.

Can I offer two thoughts on that? First, as you rightly identified yourself, these are not new conversations. The nature of some difficult decisions has always been there. The precise circumstance you described does not arise out of the Supreme Court judgment or the publication of the code; rather it is a statement of fact. Secondly, this is not the only set of balance of rights issues in which swift judgments are required of people on the ground, whether it be nurses in a hospital determining what bed somebody goes in or police officers on the ground policing the balance between free speech and harassment, as Mary-Ann talked about earlier. These are difficult decisions. Something that the code does is help the organisations for which they work establish the policies they will need rather than leaving those individual frontline practitioners to make those tough decisions without help and guidance.

I am sorry, you have not really answered Kevin’s question there. You are saying that it is up to individual organisations to come up with the policies to back that up. Given what Kevin has just asked, there is not necessarily a clear indication of what that policy should be.

Most people will—presumably correctly—take from the code the sense that where you are trying to establish and maintain a single-sex service, that single-sex service needs to be established and maintained on a biological sex basis. That is the implication that lies at the core of this. How one then works through that will be a little different I suspect depending on the particular circumstances in which one finds oneself. You asked, the question—I hope I interpreted this correctly—what would we be most worried about? I would be most worried in that kind of situation about people who are trying to find a way of delivering services that are accessible to everybody and that provide the universal service that many of these people are doing in the way that they would want them to be, in a situation where there may not necessarily be the physical infrastructure in place right away or whatever else. The thing that would trouble me is that people have to work out how to deal with that and we have to accept that that is not easy.

I want to start by reading an email I received from a constituent who has given me permission to raise her case with you today. Emma is a trans woman working as an HGV driver. She said to me, “After a lot of thought, I have decided to start making plans to move to Ireland. I no longer feel safe here in the UK. When the new EHRC code comes into force, there will be a witch hunt against trans people. The UK is turning ugly. I swore on oath to the British Government that I would spend the rest of my life living full-time as a woman. It is a shame the British Government did not keep their promise. It is really shameful what is happening.” What do you have to say to Emma and trans people like her who no longer feel safe to live their lives in their country?

I have spoken to many people who have raised similar points to Emma. I understand and appreciate—particularly for those people who have the Gender recognition certificate—that it must be a shock that the interpretation of the law that many had is not what the Supreme Court decided the law was. This is not about avoidance of blame but it is about clarity. It is important to be clear that all the code does is set out what the law requires. We are not making the law; the law exists regardless of what happens to our code of practice. What I would say is that it is very important that Emma and people like her have access to the services that they need. We talked about her case when we met a few days ago, and that there is sufficient provision of gender-neutral facilities or other facilities for HGV drivers and others.

I am not aware of any gender-neutral shower facilities at motorway service stations or truck stops because they do not tend to have facilities that have traditionally been used by disabled people. In Emma’s case, given that only 2% of HGV drivers are women, would you suggest it was proportionate for the operator of a service station to step in if Emma were to use the female facilities there?

What we would say is we are not expecting service providers to be standing guard over facilities. We are expecting them to respond if there are complaints or if there is an ongoing problem. What we are trying to do in the code is to be clear what the law requires with the understanding that if you are providing a single-sex service, that has to be on the basis of biological sex. The law requires that trans people are not discriminated against and in very many cases the best way to ensure this is to provide alternative services, and that is what we are getting at in the code.

You cannot say whether it is proportionate so I will move on.

What I said—

I will move on, thank you. The organisation Galop supports LGBT+ abuse survivors' access to emergency accommodation but it says that out of 170 referrals this year, it has not been able to place a single trans woman into secure accommodation, which seems to be an impact of the Supreme Court judgment. That means those trans women either remain with their abusers or are homeless. The code of practice suggests trans people require their own services if they cannot access single-sex services such as abuse shelters, but as this appalling example shows, such services simply do not exist. How will the EHRC address that obvious gap between the words of the code and the reality of the situation facing vulnerable trans people?

I have met with Galop and we have discussed some issues in this area. There is a wider problem, which is that large numbers of referrals to women’s refuges have to be turned away every day because we have a chronic problem of underfunding in the sector. Clearly these referrals are specifically trans women and that is a major problem for them but it is not exclusive to trans women. There is a major problem with people being turned away from refuge provision because there is not enough space, often because it is not possible to move people on to other services. Very many refuge providers have a combination of both single-sex communal provision and some self-contained provision, which historically was for women with older teenage sons and is now often used to house trans women. There are also specialist providers. It is important that there is increased funding for this sector as a whole because people being turned away is a major problem across the board.

As you have made clear in a recent interview, the EHRC is not just a regulator; it is also an advocate or champion for equality and human rights. You have said that the code of practice simply reflects the law as established by the Supreme Court judgment and that those who are unhappy with the law should change the law. Are you advocating for changing the law and if not, why not?

The law provides a good balance between the rights of different groups. The starting point of the Equality Act 2010 is where we would all want to be, which is that nobody should be discriminated against, and then it allows for specific provision in specific circumstances, which is important. Those who would look to change the law would have to take into account the various problems identified in the Supreme Court judgment with having what they called a certified sex interpretation, which is that it would create problems for the protection of trans men in terms of pregnancy and maternity. It would mean that the category of sexuality was incoherent and that it would be very difficult to demonstrate the legitimate aim that would be needed when providing single-sex services if you were providing services that allowed in some people who were of the opposite sex but not others. If you follow the reasoning of the Supreme Court and why it came to the decision that it did, I do not think it was about, “We must just strictly follow the letter of the law and not think about the spirit.” What it looked at is what legislators were trying to achieve in creating provision for single-sex services in the first place and what a certified sex interpretation—based on legal sex rather than biological sex—would actually mean in practice. It said that it would mean various parts of the law were incoherent and that it would be very difficult to justify providing single-sex spaces if you were allowing in some members of the opposite sex.

Very briefly, John, just to pick up on your comment about the basis of this being that single-sex spaces are based on biological sex, the draft code includes an exception to that. The example given is a woman being able to take her male child under 10 into the women’s changing room, which is paragraph 13.136, so it imagines that there might be exceptions to strict single-sex provisions. My basic question is who decides where those exceptions end?

Ultimately the law determines where the exceptions end. We do not think of single-sex status as something that is permanently compromised by a single instance.

Where in the law does it allow for that exception, which is perfectly commonsensical?

That exception is capable of being defended and justified in law and in the right circumstances. Those circumstances might be where, for example, that admission actually might help to pursue the aims that the single-sex service is being set up for. Being allowed to bring a young male child into a women’s changing room in a swimming pool makes it more possible for women to use that swimming pool, which is the ambition in the first place. Secondly, that there is no collateral damage to the purpose of the single-sex space; the presence of a small boy in that situation does not compromise safety, privacy or dignity in the way that an adult might, for example. That is the way in which that case might be justified in law.

I sometimes feel a bit uncomfortable when girls are brought into the men’s bathroom.

Thank you both for coming in this afternoon. You have had a really difficult job to do and you have my sympathy and understanding for that. I am concerned about what this looks like in the real world. Dr Stephenson, one of your opening comments was that we now have a very clear position about what the law says but the manifestation of that feels far from clear. You have said that we probably need more sector-specific advice for charities and the NHS. You have said that these are not new conversations and I just worry that this is all very messy. Going back to what Alex Brewer said, what we are interested in—what I am interested in—is how we are making people’s lives better, not worse or more complicated. From what I have heard this afternoon, it certainly does not feel like we have made life better for trans people; I am not sure if we have made life better for anybody with what has happened. I just wondered if you had any reflections on that and what you think some follow-up work might look like to try to make sure that that is the key objective.

If you look across the code, as I said it covers eight protected characteristics and goes into a lot more detail than you would get, for example, in the Equality Act 2010 about what that means in practice. Obviously there are some areas where the law is complex. The intersection between the Equality Act 2010 and charity law, for example, is complicated. Whether charities can easily change their objects is not straightforward. In those areas, you need more advice, but that is true of any area of law. You have the legislation, you might well have guidance that sets out the basic explanation, and then there will be situations where you will have to take specific legal advice. Anybody who has been an employer, for example, will maybe read Acas and EHRC guidance and have a sense that helps them develop policies. When they face a particular issue in their workplace, they may need to take additional legal advice because sometimes the law can be more complicated. I do not think that is a function of the code; the fact is that in a document that could be anywhere near readable, you cannot cover every single possible scenario that somebody might be faced with. What you can do is identify some most common scenarios and give concrete examples of what to do in those circumstances.

I would like to add the hopefully not too simplistic point that if you compare a world without the code and a world with the code, our hope would be that in a world with the code, more people are able to comply with the law in ways that make it work. Because we have provided advice on what the law means and some examples on how you might be able to do it and would therefore not be subjected to litigation, people would be operating under legally sound arrangements and would not have to litigate in order to defend their own interests. That is better in some senses, and as a regulator, that is the way we have thought about that. That is the purpose of having a code in place.

My concern there—we will come on to this shortly—is the impact for wonderful groups and organisations such as Girlguiding and the Women’s Institute, which have very clearly said to me and to other colleagues, “We now have a lot of problems we just did not have before because we were actually doing a fine job of including trans people and giving young people opportunities,” and it just really worries me that this has made it worse for organisations such as that. I will come to quite a specific question about unisex spaces. To what extent will broadening the use of existing unisex spaces—such as disabled toilets and baby changing facilities—to meet the needs of trans people impact those other protected characteristics?

That is something that we identify in the code and needs to be monitored and kept under review. To be clear, we are not suggesting that the only solution to this issue is to just use the disabled toilets. The example we gave was of a very small community centre that did not have space to do that. We also gave examples of a larger shopping centre that might provide both single-sex and unisex facilities. There are very many reasons why people who may not be disabled or indeed trans might want to have access to a single lockable room with a sink in it, for example a menopausal woman coping with flooding might want to go and be able to change her clothes and wash her clothes in the sink. Something that would really help to take some heat out of the conversation in this area is to move away from the idea that this is just about which toilet trans women should use. We need to actually think more broadly that we are a diverse society with people with multiple different needs, and we need to make sure that everyone is able to access the services that they need. That will include different combinations of services for different people. Obviously, small providers cannot be expected to do everything, but larger ones potentially can. Something that I do now when I am out and about is clock the toilets and see what facilities there are, and I am aware of a very wide range where there are a lot of unisex as well as single sex facilities.

If there is an impact, for example, on disabled facilities, is there a mechanism for organisations to monitor that and is there a way that the Commission can support them in doing that? What does that look like?

We do not try to provide a specific mechanism for doing that because the circumstances will be so different depending on the circumstances of each organisation. If you come back to where Mary-Ann started, our purpose here is to make sure there are facilities that are available and accessible to everybody. One might say the first and most important thing in the provision of an accessible toilet facility is that there is provision for the people who need it. To a significant extent, we would expect people providing such facilities to be monitoring the adequacy of those facilities now because otherwise they are not doing their job. What they potentially have to do if they legitimise access to that facility for more people is continue to ask themselves the question, are these facilities still serving the purpose they need to, which is to provide those facilities for all people? Because people can do that now and they will continue to be able to do it. To be able to monitor whether there is adequate provision of an accessible nature is not that complicated or difficult for them.

We have seen a number of MPs—including several members of this Committee—signing EDM number 240, which was tabled by one of our members and which calls for the EHRC code to be disapproved. They have also made statements in public on their websites and on social media saying things like, “The code of practice furthers the UK’s hostile environment for trans people,” “The code effectively pushes trans people out of public life,” “The code presents a major and worrying change in how equality law may operate in practice for trans people,” with one MP adding, “One of my constituents described this code of conduct as trans apartheid.” Those statements reveal quite an alarming misunderstanding of the Equality Act 2010, the Supreme Court’s ruling on that existing legislation, and the EHRC’s role in advising on those issues. Do you think that the EHRC could and should play a direct part in educating legislators on these issues, specifically how you as a body work within the law that we make in this House?

That is something that we have started trying to do. We ran a session last week for MPs; we would be happy to do another session in the future. Obviously in a democracy, people are entitled to say what they think about legislation, if they disagree with it and think the legislation should be changed; that is part of the democratic process. Particularly, obviously, for MPs, there is a duty to say what they think about legislation. It is important to be clear that the code is not making new law or requiring bodies to do things that they are not already required to do, particularly following the Supreme Court judgment. The section on sex and gender in the code compared to the several hundred other pages on other protected characteristics is relatively small. What the code is doing is setting out what the law requires—both the wording of the Equality Act 2010 and subsequent case law, including a Supreme Court judgment—our best understanding of that and how bodies can follow that in order to ensure that they are not inadvertently discriminating against individuals or groups, which is intended to reduce the amount of litigation and make sure people have their rights met. What we have tried to be very clear about is that where you are providing single-sex services, you also need to think about the needs of people who cannot or do not want to use them. Whatever happens to our code of practice, the law will remain the law unless it is changed by Parliament. It will not make any difference to what service providers, public functions or associations are or are not obliged to do; it will just mean that there is no explanation that will help them follow the law.

For a number of years, women who have sought to protect our legal boundaries have been vilified and humiliated. The “punch a TERF” rhetoric has been frightening and very threatening to many women, many of whom are frequently in contact with me. What advice do you have for women as a body that protects minorities and protected characteristics who are using single-sex services or who may need to? What should service providers be doing to better support women?

It is very important that women are able to access single-sex services when they need them, particularly in situations where they are recovering from the trauma of male violence or are in a vulnerable situation because they are undressed or sleeping, for example. Something that we say in the code is that failure to provide single-sex services may amount to indirect sex discrimination against women. In fact, we saw a case in the Scottish courts only last week, which was in a school where the failure to provide single-sex toilet facilities amounted to discrimination. There is case law in this area, which service providers need to be aware of. More generally, I would say that the tone of discussion in this area has become increasingly febrile and deeply unpleasant for very many people. It has been unpleasant for trans people. It has also been very unpleasant for a very large number of women who were trying to argue what the Supreme Court has now said is the law. It is incumbent on us all in this area who care—I would hope everyone would care—about the rights of both women and trans people to try to take down the heat in our rhetoric and focus on practical solutions. There are genuine tensions here between the rights claims of different groups and what different groups want, and those are not straightforward or easy to resolve sometimes. The law gives us a framework for helping do that but one of the best ways to resolve these sorts of conflicts is through dialogue that recognises the needs of different groups. One reason discussion has become so unpleasant in this area is that dialogue was prevented from happening for such a long time. We could have been in a better place now if we had been able to have that dialogue 10 years ago.

Finally, your predecessor told us that she and her staff were very intimidated one day, particularly when they were holed up in your building and people outside staged what they called a piss-in, peeing outside in bottles. Do you and your staff feel safe now?

We have not experienced anything like that. We have had to move from our premises near Vauxhall to other premises because of a vandalism attack on the building by a group that had also vandalised conferences and Wes Streeting’s office. I hope that we are now in a safe position but it is something that I am very conscious of, particularly in terms of the safety of the staff.

Something that is important for us to remember—particularly when we are looking at these tensions as you so eloquently explained—is that over 50% of the population is women and girls. What action does the EHRC intend to take to address any breaches of the Equality Act robustly, particularly in hospitals, schools and prisons where safety, privacy and dignity are particularly important for women and girls?

We have to make our enforcement decisions with limited capacity and we have to prioritise them. We have a prioritisation process that is about the seriousness of the issue, whether there is something where we can make a significant difference or there is a need to clarify the law in this area, for example. As with all areas of the law where people bring issues of breach to our attention, we will review and consider them in line with that. I cannot make commitments on specific areas because as John will tell you, we have very many more referrals.

We have very many more but it might help if I just briefly tease out a little what the options available to us are. We can bring cases on our own account. We do not do that very often on the basis of things that are brought to our attention. We can intervene in court cases brought by other people. We have done that, including in circumstances exactly as you described. We generally tend to do that where we think we can be influential, helping a court to understand where that sets important precedent, where we can move the world and so on.

Let us work with a real example: prisons. It looks like there are up to 10 biological males in women’s prisons. Six of those are at a prison in my constituency, HMP Downview. A significant proportion of them are likely to be sex offenders; that is what the statistics tell us. Can you advise me what you would now do with respect to that? This is clearly a breach of the Equality Act 2010. Let me know if you disagree.

The example I would offer actually relates to prison provision in Scotland where we intervened in a case being brought against the Scottish Ministers in a way designed to help clarify what the law actually meant in that situation.

Is it just an intervention in a case? I am telling you now we have 10 biological males—some are sex offenders—in women’s prisons. What are you going to do about it?

I do not know whether the organisation already knew about that but you have brought it to our attention now. In that instance, what we would do is look at how we might best go about doing something about that. Particularly where we are dealing with public agencies, what we often tend to do first is to work directly with them to try to establish what actually is going on and what, if anything, they are doing to come into compliance with the law. Mr Sobel cited the NPCC guidance, for example, and Mr McKenna talked about parts of the NHS, the prison services and others; all these are looking at how to think about making sure that they come into compliance with the law, and we would want to ensure and understand that they were doing exactly that.

It is a good thing to raise with the Justice Secretary. It is on the record; we know this is happening. Answers have been provided; it is in black and white, so maybe I can follow up with you afterwards as to what action you will take with respect to that.

Please do.

I spoke to all the Committee beforehand to say not to refer to live cases. I am going to repeat that to our panel now as well.

I just want to come back to the specifics of the guidance because it feels like there is a bit of a contradiction where you have said in an answer to some Committee questions that we as a society have been successfully navigating this for a decade and more. You have also said that there is a change in the form of the Supreme Court guidance and therefore organisations are rightly worried about how they navigate this going forward. It seems there are some tensions that are there and are real and now we are operating in a different framework. I used to run women-only spaces and domestic abuse services. If I were running a support group in a town hall for women who had experienced domestic abuse and if sex is defined by biology, should I allow trans men into that group?

It would depend on the circumstances and this is something that specifically comes up in the Supreme Court judgment. The Supreme Court said that there may be situations where, because of the process of transition that a trans man has been undertaking—for example, he has been taking testosterone, which leads him to have a beard and so on and so forth—it might not be appropriate to include him in a single-sex service. We are very clear that those are very limited and specific circumstances and would have to be on a case-by-case basis, as set out by the Supreme Court. In other situations, it would be less of a problem. I have been on the board of a rape crisis centre so I know about these issues and how they are managed in practice. Generally speaking, service providers try to manage them with sensitivity and support, and if there are situations where they cannot provide group support to somebody, they will try to provide other forms of support to them.

It would depend on the circumstances. If it is a situation where you have a rule that applies to everyone—that they would be expected to use a single-sex space and then they cannot and you provide another space—that might be indirect discrimination. It is very fact-specific so it is hard to give a concrete answer; it would depend on the circumstances of the case. That is a potential issue and is one reason why service providers need to think about making sure they provide services to everybody.

Just to follow up on that question, I wanted to give another real-life example, and I spoke about it during the Pride debate. Teraina is 83 and has lived decades now as a woman. She discharged herself from hospital so that she could have a conversation with me because she felt so strongly about the questions that I had raised, many of which I will not have a chance to raise with you so I will follow them up in writing. She was really scared about being placed on a man’s ward after living decades as a woman at 83 years old. The Minister and yourself have often talked about dignity and common sense. Would it be dignified for Teraina to be treated on a man’s ward?

Very likely not. This is a sort of example where we are saying that there needs to be alternative provision. It is clear that there are situations where requiring a trans person to use a service of their biological sex would not be appropriate, which is why we are saying there needs to be alternative provision. I can keep coming back to the fact that we need to make sure that we have services for all people. I understand that that is a really distressing situation to be in.

Does that mean that there will need to be an obligation for a third space for trans people, people who are intersex and non-binary, and where does that protect their human rights to privacy if it is a third space?

People with differences of sexual development are still male or female and generally speaking would be treated in a space according to their sex. They may also be trans.

Do you mean intersex people as well?

I was using differences of sexual development rather than intersex because that is a term that very many people prefer. Some people use the term intersex; language in this area is contested. There are many reasons somebody might be on a private ward, just as there are many reasons somebody might use unisex toilets or other unisex provisions. I do not think that is automatically outing somebody. It is not like we are suggesting that there should be a male space and a female space and a trans space. We are talking about male and female spaces and then a unisex space, which many people might use for different reasons.

One change that you have made to the code is in relation to discrimination exemptions for associations that admit members based on multiple protected characteristics. How will that work? Can you explain that please?

In the previous version of the code that went to Ministers in September, we were taking an on the face of it reading of the Equality Act 2010, which says that you can have an association for people who share one or more protected characteristics, for example, women and Muslim women. Obviously that is based on the definition of sex in the Equality Act 2010, which is biological sex. Clearly that led to a situation where associations could not organise in the way that they wanted and we recognise that that is a problem. People have Article 11 rights to freedom of association. The previous version had a suggestion that two associations could be legally distinct but basically do activities together. It was suggested that we could look at the Interpretation Act 1978, which says that a singular can include the plural. That would allow for associations that had people who either shared one or more protected characteristics or who shared one or other of different characteristics.

A reason I ask that, and for further clarity, is: could the implication of the draft code be that women’s associations that have changed their membership policy since the Supreme Court judgment may now be able to revert to trans-inclusive memberships because those are two protected characteristics?

It depends on what their membership criteria are. If the membership criteria are to be a woman, then that would have to be based on biological sex. You can change your membership criteria to say, for example, “We are now an association for women and trans people.” There is a difference for charities because charities have to abide by their objects. Changing their objects may or may not be straightforward depending on how their objects are drafted, and you also need to get the permission of the Charity Commission. We have met with the Charity Commission and we are proposing to do joint guidance in this area.

Just to be absolutely clear, as I understand it the draft code says its multi-protected characteristics approach is necessary for compliance with Article 11 of the European Convention on Human Rights, freedom of association. Could a women’s association—for example, the Girl Guides or the Women’s Institute—say that it was now an association for women and trans women and that would be acceptable?

Trans people, because they are two characteristics. It depends on whether it is a registered charity or not. If it is a registered charity it becomes more complicated, but an association could.

Going back to what you were saying earlier, you have said repeatedly that people thought they had rights when they did not, but also that the system that we have has worked well for decades. If it has worked well for decades, why do you think we felt there was a need to change it?

What I was talking about in saying the system worked well for decades was the idea that it is not possible to operate single-sex spaces because you cannot tell whether somebody is male or female. I am saying we have operated single-sex spaces for decades, and generally speaking, that has not been a problem.

Even since the GRE in 2004 and the Equality Act 2010?

Clearly there were problems with the way in which the Act had been interpreted in terms of provision of single-sex spaces because very many women were left in a situation where they were not able to access single-sex spaces when they needed them, and that has led to distress and trauma and, in some cases, court cases in order to enact that. When I say it has not been a problem, what I mean is that we have been able to provide single-sex spaces without having that legal definition. There clearly has been a problem as a result of the interpretation that people had, which is why there have been so many cases taken to court and we are now in a situation where the Supreme Court has given clarity.

My background is in sport, health and fitness so it is something I feel very strongly about. I just wondered what you believe the implications of the code are on sport, whether that is at a competitive level or at a recreational level, and what you will be doing to work with organisations that deliver sport and recreational activities.

When it comes to sport, there are some areas where the law is not entirely clear, particularly around recreational sport and what is permitted. We believe, for example, that it would not generally be permissible to have separate sport for women and men that then included trans women in that group because sport is what is defined in the Act as a gender affected activity. We are already seeing quite a lot of changes in this area at the more competitive level; world athletics and others have come up with their own guidance. How different sporting facilities and organisations interpret this will depend on what the sport is, whether it is national or international, and what else is going on. Something that we talk about in our guidance when it comes to positive action provisions, for example, is examples of how you could use positive action to increase women’s participation in sport, what would be proportionate and what might not be. If you have an interest in sport, it is important to look across the code as a whole and not just this particular section.

Women and girls have lost medals, podium places, earnings, and some may even have been injured due to sporting bodies not complying with the Equality Act 2010 and allowing males to compete against them. What will the EHRC do to support women and girls who want to hold sporting bodies to account for these historic injustices and what will the EHRC do to hold them to account going forward?

The answer to that is probably very similar to the answer that John gave earlier in terms of how there are multiple bodies in this area that have policies that are likely to be in breach of the law. The first step is to come up with the code. There will be further steps that may be looking at talking to organisations, umbrella organisations or representative bodies, providing more detailed guidance and so on. If there are particularly difficult or pressing problems, again, we are an organisation with limited capacity. There are always more things that we should take action on than we are able to, so we are going to have to prioritise what we do. We are aware of this, as we are with prisons, for example.

We would probably prioritise—now and looking forward—making sure that the arrangements that are put in place by sporting governing bodies are compliant with the law and protect fair competition because the law says that they can do so in various ways without discriminating. Going back to historic injustices, as Mary-Ann says, we would look at that in the context of our prioritisation criteria but we would start with making sure that the arrangements that are in place are the right ones going forward. That seems to us more likely to head off future problems.

Absolutely, and it is probably worth considering where taxpayer money is going and making sure that it is going to sporting bodies that understand and are taking the law seriously.

Before I get on to some supplementaries that people have indicated, I just have a question here around special category data. Sex is not listed as special category data in UK GDPR. The Information Commissioner’s Office has said that someone’s gender identity is not automatically special category data. Why has the EHRC said sex should be treated as a special category data in seemingly all circumstances? What is your response to arguments that this categorisation and the guidance within this section go beyond the EHRC’s remit and make enforcement of the law more difficult?

We are not saying it should be treated as special category data in all circumstances. What we are very clear about is that it is legitimate to collect data on sex for the purposes of equality monitoring or service planning, and public bodies under the public sector equality duty will need to collect data on sex in order to meet their obligations there. It is also legitimate to ask about sex to ensure a single-sex service in circumstances where that is proportionate. In those very specific circumstances where there is a question about somebody’s sex and asking for that information may reveal special category data, for example, about somebody’s health—one of the things that the Information Commissioners Office says is that transgender status can often reveal information about health, which is special category data—it should be treated in that way. That is not about collecting it, it is about ensuring how it is stored, who has access to that data and so on. We understand that there have been some misunderstandings around this. We are going to be producing an explanatory note to make it clear that when we were talking about special category data, it was in a very, very specific set of circumstances.

Am I right in saying that you will have some workplace guidance coming forward soon?

As Mary-Ann said earlier, there is an employment code of practice, which is of similar age to the previous version of this one and is therefore similarly somewhat out of date. One of the options available to us is to think about updating that code of practice. As we know, updating and revising codes of practice can be a somewhat laborious and clunky exercise, so it may be desirable to think about guidance for the workplace in slightly different ways. Our core analysis of the law and core understanding of the law as reflected in the code can be read across into the workplace in many circumstances. The High Court agreed with that in its analysis of our interim update last year. There is something there, but we will be thinking about how best to provide guidance in the workplace or in workplace contexts. We will want to be doing that in consultation with others who have an interest in the area. That might be employer and trade union interests as well as other regulators.

Dr Stephenson or John, I do not know who would be best placed to answer this question: is there an estimated cost to either the public or private sector for implementing the code of practice?

Yes, we did an assessment. John, this was during your time so I do not know if you want to—

We have done an assessment of the costs associated with the code as part of the process that the Government need to go through, which is part of normal policy development. The impact assessment is published. We provided a range estimate, and it is quite a wide range because there is not very much data in these areas. It goes from a small single-digit figure to about £160 million at the very extreme upper end. That is right across the economy: everybody who might be affected. We have not tried to break it down by public sector, private sector and so on and so forth. The data simply would not permit that. The upper end estimate might sound quite high, but it is an upper end estimate. That would be if everybody is currently not complying with the law and has to make quite substantial physical adjustments to buildings and so forth, in order to come into compliance. That is not a likely estimate of what the nature of the costs would be. The right way to present it is that there is a range of cost. We have to accept that for people who are already complying with the law, additional cost associated with the code will be zero. Many people will be able to bring themselves into compliance with the law just by changing policies, signage, approach and so on and so forth. The cost of that may be very, very modest. There will be some circumstances where greater costs are necessary. That is what we tried to estimate as part of the process of informing the Government’s thinking and indeed Parliament’s.

Given the importance of sport to health, wellbeing and community cohesion—I am very passionate about this as someone who still plays grassroots sport—do you think the Commission has a responsibility to set out some clear examples of how sports clubs can enable trans people to participate where possible, or do you think it is okay that trans people will just stop being involved in sport and physical activity as a result of this?

It is not okay that trans people would just stop being involved in sport and physical activity as a result. Although we do not have a stand-alone case study in the code, we have in the narrative where we talk about the way in which sporting bodies could respond. Many sporting bodies have moved to having, for example, a female category and an open category. Many may organise mixed-sex activities. There are a number of different ways in which this can be done. However, large numbers of sporting bodies were already making participation on the basis of biological sex; very few were making it on whether somebody had a gender recognition certificate. There are clearly issues of fair competition and in some cases—particularly with contact sports—safety, in ensuring that that sport is single sex.

I will not quote it but paragraph 1382 in the code makes the same point. Not only does it not seem right but it may also be unlawful not to be in a position where trans people can participate in sport. Therefore, we suggest a number of ways in which people might go forward. Maybe we have not gone as far as some might like us to in setting out what those ways are, but I would like to think we have tried.

Can I just come back to a point you made earlier, Mary-Ann, saying that it may be proportionate to exclude a trans man from an activity based on his appearance: for example, his facial hair? You are saying that it can be proportionate to exclude people based on their appearance. Would that equally apply to a woman who did not conform to gender stereotypes?

No, it would not. We are again referring to the Supreme Court judgment. It came up in the situation of sport, for example, where it said that if you had a trans man who was taking testosterone, it might very well be proportionate to exclude them from female sporting activity because of the unfair advantage that being on testosterone would give them over and above other women.

Apologies, I did not make it clear that I was not referring to sporting activities in that question.

The Supreme Court also talked about situations where it might be proportionate to exclude trans men from female-only services where the process of gender transition they had undergone had changed their appearance. I am sure those of us who are on social media will see it a lot, where people will post pictures of trans men who appear to be male and say, “You’re basically saying these trans men should be in a women-only refuge or women-only situation.” The Supreme Court decided that the purpose of the exception for discrimination on the basis of gender reassignment was precisely in order to deal with that relatively small number of cases. We are very clear in the code that that would have to be on a case-by-case basis. This is not about how well somebody performs femininity. There is a very big difference between somebody who has short hair and wears trousers and somebody who has been on testosterone for a large number of years. These are quite complicated and difficult issues, but that is what the code is trying to reflect, which is exactly what came up in the Supreme Court judgment. It is there because it was in the Supreme Court judgment.

You have said these things are very different, and you have said that this is not about performing masculinity or femininity. I agree with you that we have to take the heat out of this discussion because I want to protect women’s spaces and women’s safety, and I want to protect trans safety. I do not mean to be crass; the practical implications of this are significant for groups. I am a woman with a gender-neutral name and short grey hair. I have had people accidentally saying to me, “Oh, so are your grandchildren here?” I have had people accidentally saying to me, “Excuse me, Sir” because they are behind me. They are mortified—I hope—in both situations when they realise that is not the case. It is easy to misidentify people. At what point should we be asking? At what point should somebody be saying to me, “Excuse me, Alex, are you actually a man?” At what point are organisations going to be litigated against for not asking those questions?

It would depend. Part of the litigation we have seen so far against organisations has been for them saying, “This is our policy.” Spaces that women might expect to be single sex will admit trans women, and that is why there have been cases brought against them. One of the things we try to make clear in the code is that this sort of enforcement has to be proportionate, and it depends on the circumstances and the service you are operating. As I have said, we specifically say that we are not expecting service providers to police the use of toilets. We do not do that at the moment. There are circumstances—for example, if you are running a women’s refuge or a rape crisis centre that is female only or maybe has a female-only space—where you may have to ask on occasion. That should be done sensitively and discreetly. It is highly unlikely that women working in the violence against women and girl’s sector are going to be mistaking women with short hair or names that could be male or female as men.

I just wanted to quickly pick up on that point where you said that you are not expecting organisations, businesses or workplaces to police the toilets correctly. What is the sanction, then, and the enforcement for somebody not using the toilets correctly? Is that on the individual, or is that on the organisation or the building?

The code covers what is required of organisations. What we are saying is where you have toilets that are incidental to the main service—you are running a shopping centre or a train station—nobody is expecting you to do that. Obviously, if there are regular complaints, if there is a sustained and ongoing problem, you might need to improve signage or policies.

Is there any sanction or punishment for not complying or not doing it? At the moment, it seems like the onus is all very much on the individual. I wonder where they stand legally on that.

The law bears on the service provider.

You have just said that it is not their responsibility to police it.

It would not generally be proportionate. There may be occasions—for example, a gym changing room—where there might be complaints and a service provider might need to take action or speak to somebody. The sorts of cases we have seen so far around changing rooms and toilets have been largely workplace based, which the code does not cover. Neither the Equality Act nor our code covers the behaviour of individuals. Obviously, service providers can set a rule that says, “If you don’t follow this rule, we’re going to ask you to leave,” and that would be what they did. However, there is no criminal offence of using the wrong space.

If a service provider either does not have a policy or has a policy but it is widely flouted in a way that creates a situation that is unsafe or discriminatory against women, then they are very vulnerable to a case being brought against them.

I would argue that women walk around fairly unsafely pretty much in every public space, unfortunately.

I would like to just slightly roll back to something Sarah said in her example, where she was talking about different sex accommodation in hospitals. You talked about providing alternative provision for the person Sarah talked about. If you have a male oncology ward, say, and a female oncology ward, what would that alternative provision look like? It sounds like that would be a third type of oncology ward. While that might sound okay on paper, clearly in practice you cannot staff that. You already have two clinical teams.

It might be a side room. It depends on the treatment and the service. As John said, our code cannot set out what needs to happen in every single potential scenario because it is already over 300 pages long. It can say, “This is what the law requires,” and then specific organisations in different areas will have to develop policy that works within their context.

Clinical need is going to override those side rooms in many situations, just because there will be patients with infection, patients who are neutropenic and so on. That is one side of it. It just feels like so much of what we have discussed today is passing it on. Things have been written down in this code that are not going to survive contact with reality. It has not actually given a lot of the real guidance that organisations need. Possibly because this is a circle that may not be able to be squared. To randomly paraphrase Harrison Ford when he was talking about the “Star Wars” script, he said, “You can type this stuff, but you can’t say it.” You can type this stuff, but it cannot be delivered. This is going to be the real challenge. You talked about the funding and the costs of alternative provision, but it is not just the cost. When you have only so many staff to deliver a service, when you have only so many people who are expert in a particular condition, a lot of this is going to really struggle in contact with reality.

The challenge with that will be finding a set of arrangements that meets the ambition because the ambition is to preserve the safety, privacy and dignity of all patients: not only the individual patient one might be starting to think about, but also the other patients on the ward. I would expect that in reality, the ward managers, nurses and clinicians would be trying—as you say, presumably starting from clinical need—to work out how they can best do that. There will be a variety of potential answers to it.

When this does not happen in practice, and when we simply cannot deliver services that meet these requirements, what is the EHRC going to do about it? If this code is put into practice, if it cannot work in practice, what are your next steps? What are you actually going to do about this, if you just cannot make it function?

We do not start by envisaging that it cannot be made to function. We can imagine that in particular circumstances people will have great difficulty working with this law, and I agree that the code may or may not help them get through it. We have to do a couple of things. First, we have to keep an eye—as we generally do—on whether the law is being complied with. The law is more likely being complied with if people are making good faith efforts, as I said earlier, to provide services in a way that preserves the safety, privacy, dignity and indeed clinical need of all patients. That is where we would start. If we as the EHRC found ourselves being repeatedly presented with situations where the law is clearly being broken, then we would have to think about the extent to which we might be the ones who ought to be bringing enforcement action and/or talking to those responsible—whether it be NHS England or whoever else—about the failure of the provision of services. After all, we bring to Government’s attention a number of things in terms of our monitoring human rights obligations context, where we do not think services available, for example, for rape victims, are frankly adequate. That is something that we can and should do.

We are coming up close to 4.30 pm. The Minister is on their feet, and they have been for 22 minutes. They are going long on the steel industry. I would like to thank you both. You have been generous with your time, and we are grateful for that. There are a number of questions that I know Members had, that we had, which actually this time has not afforded. I have some about methodology, public consultation and techy things. I know others would have had them too. Are you happy to receive those in writing?

Absolutely.

Yes, absolutely. We are also happy to come back.

Thank you. I am really glad that you are happy to come back because like we said, we have been very focused on one particular area. It is an important area, but that does not mean that there are not other important areas of the EHRC’s work and future work that we all need to cover and scrutinise. Thank you very much. That brings this session to a close.