Trans people 'could be excluded from single-sex spaces based on appearance', leaked guidance suggests

The guidance, reported by the Times, was created nearly three months ago to help public bodies adhere to the controversial Supreme Court ruling in April that sex is defined by biology within the Equality Act.

Reports also claim that some in Whitehall are concerned that Labour has not yet published the advice to avoid political backlash.

Under the guidance, the EHRC suggests venues such as hospital wards, gyms and leisure centres would be permitted to question a transgender woman’s use of a single-sex service based on how they look, their behaviour , or concerns raised by others.

If doubts remain, they could be excluded once operators have considered “relevant factors”.

Many councils, NHS trusts, and businesses have continued to allow trans women to use women-only spaces, despite the Supreme Court ruling, with some saying they are waiting on the guidance before changing their policies.

The EHRC guidance reportedly states it is “a legitimate aim” to provide single-sex spaces in order to ensure “the safety of women or the privacy and dignity of women and/or men”.

It is said to recommend organisations consider whether an alternative can be offered if someone is excluded — but acknowledges that may not always be possible.

According to the Times, the guidance reads: “It may be that offering alternative arrangements is not reasonably possible […] this may be because of the type of service being provided, the needs of the service users, the physical constraints of any building, or because of the disproportionate financial costs associated with making those arrangements.”

Earlier drafts are said to have suggested service providers could ask to see a birth certificate or gender recognition certificate (GRC) if they suspected someone was lying about their sex.

The final version reportedly removes this, saying it would be “unlikely be proportionate or practical to ask for further evidence of a person’s sex”.

Instead, the guidance is said to acknowledge there is “no type of official record or document in the UK which provides reliable evidence of sex”, noting people can change the sex recorded on passports and driving licences without a GRC.

However, if there is “genuine concern about the accuracy of the response”, organisations may still exclude a transgender person.

Any questioning should be done sensitively and information stored securely, the document reportedly says.

The guidance also states that trans men could be barred from women's spaces if they are likely to be perceived as male, even if their biological sex is female.

The updated code — not revised since 2011 — applies to all public-facing services including shops, gyms, the NHS, police forces, prisons, hotels, restaurants, theatres and cinemas. It also covers private organisations providing public services, such as care homes or leisure centres run by private companies.

Other changes include advice on protections for women experiencing menopause symptoms under disability discrimination rules.

The EHRC says the code reflects the law as clarified by the Supreme Court. Sir Keir Starmer has said the ruling should be implemented “in full and at all levels”.

However, ministers faced accusations of back-tracking last week after government lawyers argued in court that access to single-sex toilets for transgender people should be decided on a case-by-case basis - a stance the judge said was “inconsistent” with the Equality Act.

Baroness Falkner, the outgoing EHRC chair, has previously urged Bridget Phillipson to publish the guidance, warning that organisations may currently be admitting transgender people into single-sex spaces unlawfully.

Dozens of Labour MPs wrote to Business Secretary Peter Kyle last month, warning the regulations could become a “minefield” of competing rights and costly to implement.

The government told The Times: “The EHRC has submitted a draft code of practice to ministers, and we are working quickly to review it with the care it deserves.

“We have always been clear that the proper process needs to be followed and we are following it.”

A government source told the newspaper previously: “Any suggestion the government is delaying the code is total nonsense, put about by opposition parties intent on stoking divisive culture wars, not ensuring we have legally sound guidance.

“This is a long and legally complex document and we are carefully considering it — and we make no apology for it.”

The source also said the devolved administrations needed to be consulted on the guidance before it was published.

A Government spokesperson said: "The Equality and Human Rights Commission (EHRC) has submitted a draft Code of Practice to Ministers, and we are working quickly to review it with the care it deserves.

“We have always been clear that the proper process needs to be followed and we are following it.”