Nobody Knows What UK Law on Toilet Access Is

Britain is lurching hard to the authoritarian right. Rather than take America as a cautionary tale, the island kingdom seems determined to race their former colonial possession to total, illiberal institutional collapse. 

We currently have a Labour government (our centre-left party), but they’ve decided that the best response to an internationally rising far right is appeasement. That the way to make it though this is to give ground—significant ground—on issues like immigration, asylum, and trans rights. For instance, despite being elected last year on a manifesto pledge to make trans people’s lives easier, they are trying to implement one of the most aggressive anti-trans bathroom bans in the developed world. And are doing so in a complicated, convoluted, and profoundly anti-democratic manner.

I wrote about this a month ago. Since then, events have . . . progressed. The various individuals and groups pushing the ban appear to have fallen out—they are publicly contradicting each other and also themselves. The Equality and Human Rights Commission (EHRC)—a body nominally responsible for providing guidance on equality law, which has pushed this aggressive bathroom ban—is not only at odds with the government, but its various representations of its own position are bafflingly incoherent. It is far from clear why this has happened, much less what will result from it.

What does this mean for the day-to-day reality of using the toilet in the UK? Chaos. Institutions as diverse as pubs, schools, hospitals, voluntary groups, and employers have adopted a wide variety of practices. Some fully trans inclusionary, some fully exclusionary, many, I suspect, simply do not know—with decisions on access being made on the fly by individual employees. 

From the perspective of a trans person, there is usually no way of knowing which—if any—of the toilets at a public venue you may use—and the staff there may not know either. From the perspective of those who do not have a conventional gender presentation (for instance butch women, many non-binary people, cancer survivors, and so on), do not know when or where they might expect a challenge on using a single sex space. Nor are there any rules on how such a challenge should take place—could, for instance, documents be requested? Must documents be requested? No one knows.

From the perspective of institutions, there is no policy on toilet use that would not create significant legal liability for you. There is no longer any official guidance, and different legal experts have wildly different views on how we should understand what UK law currently is here. Depending on who you talk to, you might be told that you cannot exclude trans people, that you can, or that you must. You can be—and many institutions are being—sued both for being trans inclusive and for being trans exclusive. 

Wait, catch me up?

Very briefly: A case was brought before the UK supreme court on whether the 2010 equality act should be read as having trans-exclusive, or trans-inclusive gender definitions. (In other words, when the legislation says ‘woman’ does it mean cis and trans women, or does it only refer to biological gender?) In April of this year, they decided in For Women Scotland v The Scottish Ministers that it was to be read as only referring to biological sex. 

This was not a constitutional decision (it cannot be under the UK system), it does not establish what ‘man’ and ‘woman’ mean for all UK law, just for this one piece of legislation. Others might be different, for instance the Gender Recognition Act of 2004 very clearly does include trans people in its gender definitions. The court’s reading of the 2010 Equality Act places it at odds with both other UK laws (the just mentioned GRA) and EU law (the UK is still subject to the European Court of Human rights as a signatory of the European Convention on Human Rights. What this means for single sex spaces is far from clear—however, the judgment itself nowhere mandates any policy on bathroom access.

Almost all the reporting on the result however presented it as if it established what man and woman meant for all UK law and as if it mandated a bathroom ban. (For those not familiar, the UK press has become incredibly obsessive about trans people. They went from publishing 60 articles about them in 2012 to 7,500 in 2022, most highly negative). The Times represented the judgement as establishing “what millions of people know instinctively to be true; that biological sex, not the expression of a subjective gender identity, is the only meaningful qualification to womanhood.” The Daily Mail characterized it as “judges rule that women ARE defined by biological sex”. And these papers hailed this as “sanity restored” and “a victory for women… and common sense!” respectively. In their jubilation, the main print newspapers alone managed more coverage in a week than the entire British media had given to ‘trans issues’ in entire years previously, with 79 articles, many front page headerlines.

Our political class, from the Prime Minister on down, quickly followed suit. One thing I’d note in this mad rush to mischaracterize, is how so many in the press and politics saw (their interpretation of) the ruling as something that would simplify; make a complex situation more navigable. For Women “Gives Clarity” Keir Starmer said, that “a woman is an adult female.” Things, everyone seems to think, would be much more straightforward now.

Shortly following this the EHRC—a body that provides guidance on how employers and institutions should follow equality law—provided an update. From now on for all workplaces or services open to the public:

trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex

Did this mean that trans people should use the toilets that match the gender they were assigned at birth? Not necessarily, the EHRC also added ”the law also allows trans women (biological men) not to be permitted to use the men’s facilities, and trans men (biological woman [sic]) not to be permitted to use the women’s facilities.”

Following this the EHRC put forward a draft code of practice for consultation. Six weeks ago, they then submitted a proposed code to the government to make it official. (Specifically to the Minister for Women and Equalities Bridget Phillipson—who has made statements agreeing with the trans-exclusionary ‘biological sex’ interpretation of For Women). She will decide if it will become official (likely without a vote in Parliament through a process called a Statutory Instrument). We do not know for sure what is in this draft code, but may assume that it is virtually identical to the one proposed in consultation—that none of the concerns raised about legality or the wellbeing of trans people were taken into account—because the EHRC leaked to The Times that it would be. As of time of publication however, Philipson has not yet taken the steps required to make it official. 

So who should use what toilet in the meantime? Many institutions, including the government itself in its capacity as an employer, took the update by the EHRC as describing their current obligations. Asked if trans people would now be excluded from government toilets matching their gender, the Secretary of State for Work and Pensions Pat McFadden replied “Yes, that's the logical consequence of the judgment and the guidance that's come out, that people use the facilities of the biological sex.”

Of course, many disputed the EHRC’s reading of For Women. Some institutions have not updated their policies to be trans exclusionary—either waiting for the final guidance to be approved or, I suspect for many, simply not aware of the evolving legal situation. Despite anti-trans activists and the press describing this as a done deal, the situation was far from clear. And it was about to become far less so. 

So it gets worse?

It gets stranger. Since I published my first article on this on 17 September a number of things have happened. 

First, the European legal system more overtly weighed in. Michael O’Flaherty, the Council of Europe commissioner for human rights, wrote publicly to parliamentary committee chair and the Home Secretary expressing his concern with the UK’s direction of travel on both trans rights, and the rights of protestors. 

On the former, he warned “certain inferences being drawn from the UK supreme court judgment that could lead to widespread exclusion of trans people from many public spaces”. In turn, this “may severely infringe on their ability to participate fully and equally in society”. He went on to warn that policies that  “would require trans people to habitually ‘out’ themselves publicly when accessing services or facilities” would violate their rights under Article 8 of the European convention on Human Rights.

The UK, despite having left the EU, is a signatory of the European Convention on Human Rights), and—as many of us have warned and O’Flaherty strongly implied—the current direction of this government places us on a collision course with the European Court of Human Rights. This is a clear warning shot that the government will lose in Strasbourg. This would create an obligation for them to shepherd in new legislation.

In response, Kier Starmer, through a spokesman, said “We will always support single-sex spaces based on biological sex . . . we’ve been very clear that we respect the outcome of the supreme court judgment and the clarity to the definition of women.”  An unnamed government source went further: Home Secretary Shabana Mahmood “fundamentally disagrees with the assessment”. They added that “it doesn’t help sustain public confidence in the European Convention when the council is seen to intervene in domestic politics and national security” 

This is all really strange and confusing. The Prime Minister respects—and will seemingly follow the instruction of—a domestic court that does not have the power of constitutional review and that he could overrule with legislation. But he (seemingly) does not respect (and it is implied we will not follow the direction of) an international court to which we are bound as part of our treatise commitments to other nations. It is implied that if attempts are made to bring the UK into compliance with our international human rights obligations we will simply opt out of them. This is shocking, but predictable. (Indeed I predicted it in my initial article on this topic—“When this anti-trans guidance invariably clashes with EU law, I strongly suspect the right will argue that we have to opt out of it”).

As it stands, the people and institutions in the UK are caught between two legal regimes. It does not seem possible to follow both the EHRC guidance and EU human rights law. In normal circumstances, this would be a significant problem for any government. In ours, it was merely a prelude to the wave of confusion that was to follow.

Legal weirdness 

The EHRC guidance has been challenged in court by the Good Law Project. The core of the argument is that, in telling institutions they must exclude trans people, they have mandated they act unlawfully in a number of other ways. The hearing will start in November, but we now have a sense of what their strategy will be. On September 23rd they published their detailed legal defence, and on October 10 the Secretary of State (the government) gave their response. 

These documents both depart significantly from their publicly satiated positions of those institutions. High-level government ministers—Starmer, Phillipson, and so on—have stuck to a hard “must exclude trans people” line, but their submission to the court seemed to adopt a softer “may exclude trans people, if justification is provided” position:

A trans-exclusive approach by [duty bearers] would likely engage s.19 EA 2010 in that such an approach may well put trans people at a particular disadvantage relative to people who are not trans. This would require the service provider to justify the trans-exclusive approach. The possibility that a trans-exclusive approach will require justification appears to be accepted by the EHRC DGs (§87).”

The distinction between must and may, between trans-exclusion being a requirement that is to be enforced across the board, or it being an option institutions can pursue with justification, is massive. The difference will have profound implications for the freedom and dignity of hundreds of thousands of trans people directly, and millions indirectly who may be challenged on toilet use. It is not clear, as of time of writing, which of these the government's position is. Or, put more straightforwardly, in different settings the government has asserted different positions. Also noteworthy is the government does not seem confident they understand the EHRC’s position, cautiously noting that this “appears to be accepted” by them, not confidently saying that it ‘is accepted’. 

Also interestingly, the Secretary of State’s response muses openly about exceptions to single sex provision. (Para 36-39) For instance, might not the attendants at a theatre allow a pregnant woman to skip the line to the ladies during an intermission by using the mens? Might not a mother take her young son into the women’s changing room at a leisure centre? To what extent does the law allow for an institution to make such exceptions, and on what basis? Depending on the answer “questions arise in law” as to whether “that interpretation would or could allow for a trans inclusive approach.” 

This is an interesting line of argument that I confess had not occurred to me when I first started covering the topic. Could we square the circle by saying, yes access to single-sex space is defined by biological sex, but there are exceptions and trans people are (or can be) an exception just as bringing a young child in is an exception. The anti-trans lobby would doubtless reject that conclusion, but from a legal perspective it would allow you to accept the thrust of For Women’s insistence on biological sex, while maintaining a trans-inclusive approach as a matter of practice (or, at the very least, allowing institutions to be trans-inclusive if they wish to be). What I want to stress is that the government itself does not appear to know the answer. Instead, they seemingly invite the court to advise them what the law says here.

The shape-shifting "guidance"

If the government is, at best, unclear, what of the EHRC? Their response is also difficult to parse, but in a somewhat different way. They remain publicly committed to a strict ‘biological sex’ reading, and I would not go as far as to say they’ve backed off this. What has changed is how they present their own guidance. Initially it was presented as a lawful and accurate statement of the law. Now that has been significantly walked back to them saying they are only telling people to do what is already lawful.

What's the difference? So, their defence places a lot of weight on a single word in the challenged guidance: 

The challenge is to three of the bullet points which, against the above background, follow the opening words: “In workplaces and services that are open to the public where separate single-sex facilities are lawfully provided: . . .” (underlining added). Thus, the assumed premise of the bullet points is that there is a situation “where single sex facilities are lawfully provided”  i.e it does not contravene the law—whether the 1992 Regulations, or under the WqA, or under the Human Rights Act 1998 (“HRA”) or Otherwise—for separate single-sex facilities to be provided. 

In other words, we shouldn’t read the guidance as mandating a course of action, so much as describing a hypothetical circumstance in which all the various legal concerns and complications have already been addressed. Instead of providing the answer to complex legal questions, they are assuming a situation where those questions have already been answered. Could that include the more cautious ‘may exclude, pending a good justification’ approach the Secretary of State ascribed to the EHRC? Maybe. It’s easy to see why the government wasn't clear on this. 

But for practical purposes ask yourself—if you were a service provider or employer scanning the official guidance website for how the ruling affected your business, how would you have read that text? Would you have interpreted it as requiring you to exclude trans people from toilets on your premises, or read into the single word ‘legally’ that you were expected to engage in a much more complex weighing process of several distinct pieces of legislation? The former is, after all, how the government itself read the guidance in their capacity as an employer. 

And this is how many ended up using it. Remember, this is not being implemented by legal specialists, or doctors, but by middle managers in every field with predictably dehumanizing effects. One trans man reported in work (emphasis mine):

I was talked to in a side room around an hour after my shift began . . . by two middle-aged people from the HR department. They told me that due to other men complaining about me being in men’s spaces, I would have to use women’s toilets and changing rooms . . .

I was visibly upset and asked if there was anything they could do to improve the situation but they just told me they couldn’t change people’s feelings. Prior to this I’d never had a confrontation or disagreement with any of my coworkers. They had a piece of paper with them from their solicitor showing the guidance they were using to support their decision, it said that trans people weren’t entitled to use single sex spaces of their chosen gender.

  [They] told me informally after the meeting ended that their solicitor told her “you can’t use the men’s room unless you have a penis”. Throughout the interaction they seemed apologetic but they clearly didn’t understand much about being transgender as they asked me what the word meant. It is also worth mentioning that I’ve had to change which part of the building I enter, leave through and eat lunch in to access the women’s toilets to change in because I don’t feel comfortable using either changing room

. . . I now dread being at work and desperately wish I could quit because of how uncomfortable I am having to use the women’s toilets.

Is this what the EHRC intended, or did this employer overread? I can well imagine a process where managers who don’t even know what a trans person is ask a solicitor, who goes to the EHRC website, prints out the relevant section, and they act on it. Surely this is the logical and predictable consequence of them publishing it?

My interpretation of this (and this is speculative, and based on what I know about the EHRC's Leadership as much as anything) is that this isn’t a substantive change in position as much as a gimmick to get them through a legal challenge. The plain reading of the guidance is that it mandates trans exclusion. This is what many have taken it to mean and implemented on that basis. But when challenged that they have advised institutions to act unlawfully, they fudge—we didn’t describe the law, we described a situation in which everything is lawful, therefore the guidance “cannot be said to amount to a positive statement of law that is wrong”.

Well, yes, I suppose. Tautologies are tautological. But it’s a cheap trick. They’re trying to cheese a difficult boss, to use videogame language. And there’s a similar evasiveness to how the EHRC describes its own guidance—this, you see, isn’t guidance at all.

Since at least July, the EHRC has insisted that what I have been describing as guidance “is not formal guidance at all, but is simply a short online news update”. Under questioning from MPs, Baroness Kishwar Falkner, the Chairwoman of the EHRC, took a similar tack; when pushed she retreated to “this is not guidance. When we publish guidance, we call it guidance.” This was part of a long and testy exchange in which both Labour and Liberal Democrat MPs attempted to pin her down on if the “guidance” should be read in a maximalist way (must exclude trans people) or not. Falkner wouldn’t say. She waffled, evaded, and went off topic. That seemed to be the strategy “She would talk the clock down. That was it. Just the one strategy. Talk the clock down.”

Let us remind ourselves that what hangs in the balance here is if hundreds of thousands of our fellow citizens can safely leave their homes. If they can work and socialise with dignity and privacy. Let us also remind ourselves that the document that, when challenged, the EHRC say isn’t guidance, is from a body whose reason for existing is to provide guidance. That it was widely reported on in the press as guidance. That politicians talked about it as guidance. That the government, in its capacity as an employer, changed its toilet use policy under the guise of following this guidance. And that any other private employers have done the same.

Have they all got it wrong? The guidance—sorry, ‘interim update’—sounds mandatory as all hell, what with its frequent use of imperatives “must not be permitted”. But is it actually (somehow) something we weren't meant to follow? 

Not exactly. Explaining their decision to publish the guidance/interim update in their most recent court filling the EHRC said:

It became clear that it would be many weeks and potentially months before Code was likely to be published. The commission was concerned that, for a period, duty-bearers and rights-holders would be susceptible to inaccurate information (including misinformation) about FSW2 or its consequences in practice, and about a suggestion being made by some—who disliked the Supreme Court’s Ruling—that duty bearers affected by the issue should simply do nothing until publication of the updated Code and guidance. 

So in other words—and somewhat reading between the lines—they took For Women as mandating a national bathroom ban. The ruling does not say this, indeed there is no legal consensus on what For Women (FSW2 above) means in practice for single-sex space access, but the EHRC took it as saying that. Rather than wait to get a code of practice approved however, they became angry that others had interpreted the ruling in a different way, and that not every institution was changing its practice. So they rushed out a short update that seemingly advocated a maximalist ‘must exclude’ position. They did so with the stated intention of changing the practice of institutions in the interim period. 

So in what sense is an ‘update’ from an official body, telling you what they interpret the law to be and how they think you should change your behavior, with the express purpose of getting you to exclude trans people when you weren't previously, not ‘guidance’? Perhaps, and this is speculative on my part, in the sense that they wanted to tell institutions to exclude trans people, and they wanted that instruction followed, but they did not want to be held legally responsible for having given it. 

And then there was no guidance 

On the 15th October, Baroness Falkner wrote a letter to Bridget Phillipson and then posted it to the EHRC website. This is where we have to cover a detail that is necessary to even attempt to understand this story: The Chairwoman of the EHRC is, and I’ll put this delicately, unhinged. People familiar with the saga suck in air through their teeth when talking about her. Cautious legal types will parse out a formulation like ‘she has a certain reputation’. Ian Dunt puts it more bluntly: “Falkner is, at best, utterly hopeless, but the problem is that she is very rarely at her best.” 

Publishing a letter to the minister is, in itself, something of an extraordinary step. Potential frictions between the EHRC and government would normally be worked out privately. She starts “I am writing to follow up on my letter of 4 September” which implies that communication has broken down to the point that there has not been communication between the two for over a month. As they are implementing an aggressive new legal regime together, as they are facing legal challenges for doing so. If this is the case, it is perhaps no surprise the government was not confident what the EHRC’s position even was. 

The thrust of the letter is that the EHRC has sent the government a proposed code. The next step is for them to make it official. But they haven't; they’ve been sitting on it for six weeks. She is frustrated by this:

It is . . . our strong preference, having been advised at expert level about its scope and accuracy, that the updated draft Code be brought into force as soon as possible to reflect the law as it has now been clarified by the Supreme Court. This is particularly urgent considering the spread of misinformation and misleading information on the law following the Supreme Court judgment which continues to circulate widely. 

Falker is generally understood, by both sides, to be a true believer in the gender critical gospel. If you take her to be someone who is deeply personally angry at trans people, you start to see that very clearly in her communications:

As you will appreciate, the longer the period before the new Code can be published, the longer the current unsatisfactory state of affairs will continue, therefore allowing practices inconsistent with the law to persist. 

What I read this as saying is—and again, this is just my read—“the trans people are still using the wrong toilet after I told them to stop! Make them stop!”

Then, hours later, the guidance—or interim update, or whatever you want to call it, the thing that summarized, however unclearly, what the official position was—was taken down from the EHRC’s website. 

It was not clear previously what UK law is in this domain. Now it is even less so. There used to be at least norms of practice, but the guidance, then its withdrawal, has vaporized them. The EHRC now simply recommends institutions comply with the law and seek independent legal advice. But what law? And what is an independent legal advisor supposed to say? They’ll be looking at the same mess the rest of us are.

What does this mean in practice?

Essentially there is now no law—or even a stable set of practices—governing single-sex spaces in the UK. Depending on exactly what you think law is (you know things are going well when we have to start asking what fundamental terms really mean), you might be a bit more cautious and say that the law is heavily contested. I would say no one knows what it is.

What does this mean for toilet users? Well, our law is structured such that the legal obligations are placed on the institution (the ‘service provider’), not the individual. So it is not the case that you (as, say, a trans person) might have a legal obligation to avoid certain toilets, rather that the establishment that operates them might have an obligation to prevent you from doing so. 

In practice this means going out if you are trans (or even gender non-conforming, or not having a presentation clearly matching your biological sex) is a bit of a crapshoot. You don’t really know what policies an establishment might have. They themselves might not know. Assuming there are only men's and women's toilets, your options are to out yourself by asking or just ‘chance it’. The latter presents risks beyond being kicked out however. The increasing consensus on how to enforce bathroom access from British anti-trans campaigners is vigilante violence—many have defended Graham Linehan for calling for that. And many people—trans and cis—have experienced just this. In practice, many trans people are simply delaying bathroom use, or consuming less liquids. This is also very physically dangerous having been shown to lead to increased cases of kidney problems and UTIs. 

For institutions, who bear the legal responsibility, there are no clear answers either. In practice, your options boil down to make a decision one way or the other and hope you don’t get sued. And people are getting sued—both ways. There is currently a lawsuit over the use of Kenwood Ladies’ Pond in Hamstead Heath (no, really) over their decision to define ‘ladies’ by gender self-id. On the other side, large retailers that have enforced the (face value read of) the guidance have faced backlash and may have exposed themselves to legal jeopardy. 

This is, to put it mildly, a spectacular mess. From a rights and dignity perspective, it's horrific. It also utterly undermines any case the government might try and make for its own competence. I take the Starmer Government to be a Type One reactionary centrist project. This is a political tribe that (though it has its antecedents) evolved in response to the internationally rising far-right over the last 10-20 years. They view this threat as a reaction, a backlash to the excesses of social justice, with immigration and trans rights usually imagined to play a key role. Their response is policy moderation—give ground, particularly on cultural issues, to regain moderate voters put off by all the ‘woke stuff’.

Reactionary centrists have two key ways they sell themselves and their approach. Other politicians might appeal to big picture values, or an overarching narrative, but they can’t—their entire project is premised on placing ‘pragmatic’ compromise over principle. Rather, they appeal to electability on the one hand, and competency on the other. 

The Starmer government is the first big test case for an unadulterated reactionary centrist approach in office (for the US democrats they are one faction among many, but they dominate Labour, and a UK government can legislate unopposed). I’ve spent a bit of time on how the first of their self-justifications has failed on its own terms (this has not been popular), just as my theory of the world predicted it would. 

It’s also worth noting how far we are from the second self-justification; competence: reactionary centrists love to present themselves as the grown ups, the sober ones, people you can trust with the car keys. What this government shows is not just that they may fail in this, but that they must fail. If your electoral strategy is inviting bigots to bully you into adopting bad policy, then you will invariably implement bad policy.

Being a “serious politician" isn’t about having a stilted, lifeless, slightly condescending affect. It's about making decisions in a serious way—weighing the rights and interests of different groups, thinking about long-term consequences, and so on. If you try to hold to some principles of liberal democracy, while allowing yourself to be bullied out of others, you will end up with an incoherent mess in theory, which will then result in an incoherent—and often very dangerous—mess in practice. This government has at least done us the favour of making that plain. 

Why are they doing this?

God knows. The whole thing is unprecedented, but even within that, this is utterly off the map. I can only offer speculation and context.

On the EHRC side, it may be that they’re backing down a bit, retreating from a maximalist position in the face of pressure. I can’t say that this isn’t the case. But my instinct is that this is less likely. They still very much want the full code approved, and my read of Falkner (again, an inference, I could be wrong) is that she is very personally committed to a full ban. 

It could be a climb down in a narrower sense as part of a legal strategy—they could say to the court that the question of the guidance’s legality is now moot as it has been taken down, no need to rule on it. (We’ll know a bit more when the hearing starts in November). Perhaps they want the government to make it official before a court gives their perspective on it.

On the other hand, it could be understood more aggressively as part of a political strategy. Falkner, by removing the guidance, has made the practical reality of navigating this much harder—we are in a very challenging and damaging legal limbo. This could be intentional, to increase pressure on the government to adopt the code as she’s provided it. They cannot let current confusion persist. 

This, for whatever it’s worth, was the read of the situation by Labour peer Baroness Thornton, who said in the Lords: “the crucial matter here is to ensure that the guidance is right . . . and ensures that legal challenges are avoided by not rushing into this matter through being bullied by the EHRC, editorials in the Times, and others” (emphasis mine) 

If I had to guess, I’d say this (the political strategy) is the motivation (although it need not be incompatible with the legal one). It’s a risky one for sure—the government could respond by sending the code back to the EHRC for revisions, or tell them they disagree with their interpretation of law (as they hinted at in their submission to the court). But—and again, this is pure speculation—Falkner might be betting that they won’t. From Starmer on down, the government has said very clearly they agree with a hardline ‘biological sex’ read and will themselves follow the guidance. It would be a hard climb-down to say otherwise now. And the press would react with unhinged fury. If this is what’s happening (again, if), then this too is a predictable consequence of a reactionary centrist approach to governance: if your entire political strategy is inviting bigots to bully you—or signaling your openness to that—you can hardly be surprised when they become emboldened to do so in situations where they wouldn’t otherwise. 

So Falkner may be playing an aggressive bluff against a government she believes is too weak to call her. Or, more mundanely, perhaps she is just deeply angry about trans people continuing to use the ‘wrong’ toilets and has taken actions well outside of our political norms for that reason. This would hardly be out of character for her. She is right about one thing though; the government is stalling. Why?

Well, they blame the EHRC for the delay. A Whitehall source responded to the letter saying “Unfortunately this looks like the EHRC deflecting—they still haven’t sent ministers the information they’ve requested in order to assess the draft code.” They should not “be giving lectures on timing while government still awaits their material.” Apparently, they are still awaiting an Equalities Impact Assessment. The EHRC insists they have submitted this (although, by their own admission, only on 13 October). Who is right? No idea at all, but it does again speak to some profound breakdown in communication among institutions who, at a first glance, appear to be on the same ‘side’ of this issue. 

To this we can add a certain amount of context: Bridget Philipson is currently running for Labour Deputy Leader, results are expected by 25 October. Her opponent, Lucy Powell has called for MPs to have a vote on any new single-sex space guidance, something the government has thus far resisted. Perhaps Philipson does not want to take a potentially polarizing decision in the final weeks of the campaign (even though she has previously signalled her agreement with a ‘biological sex’ interpretation of For Women).

More generally, the race is being construed by many as a proxy battle for the future direction of the Labour party. Should they stick with the current centrist approach of Keir Starmer, or change to a more center-left tack—perhaps even switching out leaders for Manchester Mayor Andy Burnham. 

Another key date is that Falkner is leaving her position in a month. Her replacement is also not understood to be a trans ally, but is expected to be more . . . normal. If—and this is a big ‘if’, and I’m by no means saying this is the case, but if—the government is contemplating sending the code back to the EHRC for revisions (possibly to moderate somewhat from a ‘must exclude’ to a ‘may exclude’) they might prefer to do so with someone less erratic on the other side. Hence, they may be waiting Falkner out. 

The big picture context is that Labour’s position is very, very dire indeed. They have lost half their coalition since the last election, currently polling at 18%, in almost a 4 way tie for 2nd place with the Conservatives, Liberal Democrats, and Greens. A mid-term polling slump is normal in UK politics, but not like this. Again speculation, but I can only imagine that there are some tense internal conversations happening. I also suspect that many MPs will be expressing concern to their leadership about left defections. Trans rights isn’t the only part of that conversation, probably not the main part, but it will be a part of it. 

Also, we might note that Labour leadership agreed with a maximalist ‘biological sex’/ ‘must exclude’ position very rapidly following For Women and the EHRC guidance. I wonder if they did so based on their usual political strategy of making concessions to the right without really thinking it through. Starmer is a lawyer, apparently a good one, but whenever I hear him talk he gives the strange impression of knowing nothing about law. I can’t help but wonder if they jumped at the chance to make the issue ‘go away’ and now the details are being worked out, they’re getting uncomfortable. As the lower to mid-level people who have to craft their legal response work through it, they’re raising all sorts of uncomfortable stuff. 

Finally, we might speculate that the EHRC’s high-handed approach has annoyed the government. Falkner—and I’m just going by public statements here—does not seem to be easy to get on with. I don’t think it's a stretch to imagine that those in parliament might resent being publicly bullied by a body that is their clear constitutional inferior. 

Can we infer where we might be going from here? 

Not really. What should happen is that the government should legislate. This is now too big a mess. In the US, it would work its way up to the Supreme Court and they would sort it out. In the UK, that’s parliament's job. I suggested in my last piece they could simply revise the 2010 Equality Act so as to include gender definitions. They may now need to pass a stand alone piece of legislation clarifying the issue for all UK law. But, again, they could do this at any point with a simple majority. There is nothing stopping them just sorting this all out.

But they won't. Or no one following this expects them to. Rather, there are two types of outcome we might be working towards. The first is that, despite internal concerns about left defection and legal liability, they go ahead and implement the code anyway. This could still very much happen. It’ll create all sorts of issues for them, but these are stupid, stubborn people and they’ve painted themselves into a corner with their public statements. They might feel they have no choice but to stay there.

The second is that they might send the code back to the EHRC for revisions. This has the possibility of provoking a media backlash, but it is totally something they could do. I’m not quite sure how they message it, or what results policy wise from that, but the best guess seems to be ‘something of a fudge’.

I would not feel confident at this point assigning a probability to either category of outcome. It may well be that the key decision makers themselves do not know what they will do at this moment. I think what can be said is that the ‘send the code back’ outcome is now considerably more likely that it was a month ago. This is not to say that it is more likely than the ‘just push it through’ outcome, but more likely that it used to be.

The other thing I would say is that we are very much in a state of flux at this moment. If you have any political voice at all in this country, now is the time to use it. Write to your MP, meet with them if you can. If you have any sort of public profile, social media presence, or direct line to decision makers, now is the time to use it. Both for the rights and dignity of our friends and neighbors, but also for everyone else—this is one of the front lines in the global fight against a resurgent fascism.

To anyone in the government who may be reading, I’ll say again: you do not have to do this. The reactionary centrists you handed the party to—people who styled themselves sophisticated strategists, the grown ups in the room—have failed you utterly. Their political strategy is in ruins, and their attempt at governance has brought us, predictably, to utter chaos. 

It is time to stop listening to them.

Featured image is Keir Starmer in 2020, by Rwendland