Leaked EHRC Guidance Reveals Plans to Exclude Most Trans People From Bathrooms

Trans people in Britain would be excluded from single-sex spaces unless they possess a Gender Recognition Certificate (GRC) under unpublished guidance from the Equality and Human Rights Commission (EHRC). GRCs are currently held by as little as 1 percent of trans people in the country. 

VICE World News has been leaked sections of an unpublished guidance pack dated from the end of 2021 from Britain’s equalities watchdog, which advised businesses and other organisations such as shops, prisons and gyms to “protect women” by barring most trans people from their single-sex spaces, including toilets, wards and changing rooms. 

A trans person looking for legal recognition of their gender identity currently requires medical assessments and psychiatric interviews in order to “prove” their gender and receive a GRC. Non-binary identities are not recognised in UK law.

According to the leaked EHRC guidance, a trans person should be barred from accessing spaces matching the gender they’re living as, unless they hold a GRC. But official data estimates only 1 percent of trans people in the UK currently have one.

Baroness Kishwer Falkner, the chair of Britain’s equalities watchdog wanted workplaces and businesses to “exclude trans people” from these spaces to “protect women’s rights”, VICE World News was told by ex-EHRC staff members. 

The guidance was due to be released last month but has not yet been published. 

Do you have a story to share? We'd love to hear from you. You can contact VICE World News securely using the information on our tips page. Alternatively contact Ben Hunte at ben.hunte@vice.com, or via Twitter or Instagram.

Whistleblowers told VICE World News that Falkner was “furious” about UK department store John Lewis adopting gender neutral fitting rooms in April 2021 and had subsequently “pushed for the EHRC to adopt a totally gender critical position”. 

“Falkner was furious about John Lewis ‘letting down women,’” one ex-staffer said. “She was being transphobic… The team just wants to exclude trans people more,” said another. 

Asked detailed questions about our findings, a spokesperson for the EHRC didn’t respond to any specific points. They didn’t confirm or deny whether trans people could soon require GRCs to access single-sex spaces.

They said: “We acknowledge that some EHRC staff have been unhappy, which we regret, and we are working hard to explain decisions and why they are in line with our statutory responsibilities.”

“Sex and gender reassignment are legally protected characteristics under the Equality Act 2010, as are seven other characteristics. The Human Rights Act 1998 protects all rights in a balanced and proportionate way. These are the laws that the EHRC upholds impartially and we totally refute your insinuations of bias in the areas you mention.”

VICE World News has previously reported that staff are leaving as a result of an “anti-LGBT culture” being adopted at the organisation, since a change of the government-appointed leadership team last year.

Responding to the reporting, Crispin Blunt, a Conservative Party MP and chair of a UK Parliament oversight group for LGBTQ rights, described the EHRC’s work as a “direct assault” on the rights of trans people in the UK.

The UK currently has some of the most restrictive gender recognition processes in Europe, as a result of the 2004 Gender Recognition Act. However, all trans people are currently protected from discrimination by the UK’s Equality Act, and they do not need to have undergone any specific treatment or surgery to be protected. While the way these laws intersect has been the subject of intense and frequently toxic debate in the UK, several other countries have successfully implemented progressive policies which support trans people. 

The unpublished guidance shows a radical shift from previous advice given by the EHRC. 

It is unclear how the EHRC expected organisations to enforce the policy on trans people needing to hold certain legal documents to access facilities such as bathrooms, but a current EHRC policy worker said “the leadership team aren’t worried about that, they just want organisations to know that they won’t be sued for being transphobic.” 

Staff members – who are working their notice periods – told VICE World News they are “scared” the guidance would have led to “customers reporting people for looking too manly or womanly”. 

The EHRC was established in 2007 by the then Labour government to monitor human rights in England, Wales and Scotland, and to enforce equality laws. Although not part of a government department, the EHRC is a public sector organisation funded by the taxpayer, with senior leaders appointed by the government. 

Falkner has previously described the EHRC as “a regulator with compliance enforcement powers”. The current single-sex spaces guidance is significant because organisations across the UK have been asking for help to provide legally-sound facilities. 

The Good Law Project campaign group provided another document to VICE World News, confirming that the EHRC’s current leadership team now wants GRCs to be key to accessing single-sex services. 

Jo Maugham, director of the Good Law Project campaign group, said: "What the EHRC is reported to be proposing is straight up unlawful. The Equality Act protects all trans people - not just those with a Gender Recognition Certificate. Guidance in that form would not survive legal challenge.

“This guidance as reported would mean a trans man who has lived as a man for years, and may have gone through medical treatments and operations to affirm his gender, should be using the women’s toilets if he does not possess a GRC."

Ex-staff members told VICE World News that in April 2021 Falkner pushed staff to speak to John Lewis about its trans-inclusive policy on fitting rooms, following complaints sent to the EHRC by “gender critical” groups. 

Asked what the tone of the chair’s request was, the staff member replied: “Well she certainly wasn’t congratulating John Lewis on their trans-inclusive policies. She was being transphobic.” 

“Any time Falkner saw gender-related things she wanted to get involved in, she would send an email to [senior leaders at the EHRC], and they would forward it on and loop others in.” 

Another ex-staffer recalled the same John Lewis incident: “I was completely flabbergasted. Our leadership team had completely disregarded all of the legal advice they’d been given on GRCs and the Equality Act, and I couldn’t believe what Falkner was trying to do.” 

They added that the EHRC’s legal expert on this topic has now left, and moved to “a human rights organisation that actually cares about LGBTQ people”. 

The ex-staff members said that they eventually changed Falkner’s mind, asking her to wait to contact the department store chain until the EHRC’s “new position” on single-sex spaces was ready. VICE World News contacted John Lewis, who confirmed that the EHRC had not reached out to them about their fitting room policy. 

In 2020, the former CEO of the EHRC, Rebecca Hilsenrath, stated that the laws which allow organisations to treat trans people differently “do not hinge on whether the trans person has a GRC or not.” She added: “To provide reassurance on this important point, we have written to the Equalities Minister, Kemi Badenoch MP.”

In the same release, the former leader reiterated that there is “no reason” why simplifying the way trans people are legally recognised should lead to “the removal of single-sex services or women-only spaces”. 

However, a year later – in an interview on the BBC Radio 4’s Woman’s Hour programme – Falkner completely disagreed with this. She discussed a theatre trip where she came across gender neutral toilets, saying: “I discovered that there was no single-sex space for women other than one toilet right in the rafters, very far away from where the seating was.”

“There is this sort of loss of women's toilets and women's facilities,” she added, “things that used to be there that aren't any longer there.”

Describing the guidance that she hoped to release in January 2022, she said: “All we're going to do is explain in practical terms, to different kinds of businesses and institutions, public and private institutions, what the Equality Act actually says about being able to – in this case – discriminate in favour of women. 

“We're hoping that all we need to do is point out what the law says. We're hoping that organisations will draw their own conclusions on that. It's a nudge rather than a hammer.”

Blunt, the Tory MP, said: “It does now appear the rights of trans people are under direct assault in the UK from the public body they would, until now, have expected to be most steadfast in their defence.”

He added: “Baroness Falkner should reflect seriously on the effect of her decisions to date on this most vulnerable group, and bring them back to being consistent with evidence. She should also not underestimate the breakdown in trust and confidence in her leadership within her organisation, as it is her officials whose evidence and advice is being discounted.”