Education Secretary Bridget Phillipson has said the government is “taking the time to get it right” before implementing guidelines on the use of single-sex spaces by trans people.
The Times has reported that the final guidance, sent to ministers almost three months ago, would allow places such as hospitals and gyms to question transgender women about whether they should use single-sex services based on their appearance.
Phillipson said he would consider the code of practice “carefully and carefully”.
She added that it was important to ensure women had access to unique services, such as rape crisis centres, while also ensuring trans people were treated with “dignity and respect”.
The 300-page document was drawn up by the Equality and Human Rights Commission (EHRC), chaired by Baroness Falkner, after the Supreme Court ruled unanimously that a woman must legally be defined by her biological sex.
The ECHR should provide practical advice to businesses and services on how this should work in practice.
It has previously been said that differentiated spaces should only be open to people of the same biological sex, otherwise they would cease to be differentiated spaces.
That would mean, for example, that a trans woman (a biological man who identifies as a woman) would not be able to use women’s bathrooms and locker rooms. Although they said they should offer transgender people suitable alternatives wherever possible.
The ECHR has said that transgender people, who are also protected by equality law, must be treated with dignity and respect.
According to the Times, the new guidance says that if there are concerns, decisions about access to spaces may have to be based on someone’s appearance.
It also says that if a transgender person is excluded from a space, the organization should consider alternatives and that it would not be proportionate to leave the person without essential services, such as bathrooms.
The report says the guidance recognizes that it is not always possible to offer alternatives due to space or cost limitations and that determining a person’s sex could be hampered by the fact that “there is no form of official record or document in the UK that provides reliable evidence of sex.”
Last month, Baroness Falkner urged the government to speed up approval of the new code, warning that some organizations were operating under old guidelines, which had become illegal in light of the court’s decision.
Its new guidance can only take on legal force once it has been approved by ministers and tabled in Parliament for 40 days.
Conservative shadow women and equalities minister Mims Davies previously suggested Phillipson had chosen not to approve the guidance because she did not want to damage her chances in the Labor Party deputy leadership election, which ended last month.
A source close to Phillipson described the claim as “absolute nonsense”.
Approving the guidance could be unpopular in some parts of the Labor Party.
During the deputy leadership race, Lucy Powell, who ultimately beat Phillipson for the job, said: “I think some of the language is not correct in this, and particularly in some of the guidance that is being put forward.”
Last month, 32 Labor MPs wrote to the EHRC arguing that interim guidance it issued in April would “open the door to discrimination and harassment against trans people”.
The interim guidance, which was published by the ECHR in April and withdrawn in October, is being challenged in court.
During the High Court hearing, the lawyer representing the government suggested that the interim guidelines may have been too simplistic and that access to spaces such as bathrooms could be judged on a case-by-case basis.
Speaking to Times Radio, Education Minister Josh MacAllister said the government was working “as fast as we can” but there was no deadline for a decision.
“We want to get it right, and if we don’t we risk taking this back to court and creating even more uncertainty for people.”
Asked if the government was avoiding making a decision in the hope that the issue would be forgotten, he said that would be “really bad policy… because the problem is not going away.”
“These are huge problems… when you dig into examples of how this could be applied, it has big implications for individuals, it has big implications for businesses and public services,” he said.
“The guidance, as written, has implications both for how physical buildings are configured, but also for how staff in those environments would need to determine and even judge whether someone might look like a woman.
“And so we want to avoid being in a position where people are policing the bathrooms.”
