Transgender people should not be asked what sex they are when using toilets in public, according to long-awaited rules.
Delayed guidance by the equalities watchdog says it is ‘unlikely to be either practical or appropriate’ to challenge people if they should be using the gents' or the ladies' in places such as supermarkets or cinemas.
It says signs and websites should be used to tell people that a service is single-sex, and that people can be asked if they are eligible to use it if there is ‘clear evidence’ that men are trying to access female-only areas.
But the Equality and Human Rights Commission’s new Code of Practice, updated in the wake of the landmark Supreme Court ruling on single-sex spaces, warns it is ‘not always possible to be sure of a person’s sex from their appearance’ and no official documents such as passports or driving licences provide ‘reliable evidence’.
And it states: ‘It is unlikely to be either practical or appropriate to approach any particular individual to make enquiries about their sex in relation to facilities, such as toilets, which are incidental to the primary service.’
Maya Forstater, chief executive of women’s rights charity Sex Matters, welcomed the publication of the document but added: ‘The guidance could be clearer that service providers are entitled to ask people to state their sex, and to require an honest answer.
‘It's absurd to say that it is “unlikely to be either practical or appropriate” to ask an individual what sex they are in relation to facilities such as toilets: on the contrary, if a man walks into a women's space it will be not just appropriate to challenge him, but essential. Otherwise women’s rights to single-sex spaces cannot be enforced.’
Equalities Minister Bridget Phillipson, who finally published the 342-page document after being accused of sitting on it for months, said: ‘The Equality Act enshrines our rights in law so that people can live free from discrimination and harassment.
‘Our focus has always been making sure organisations have clear, accessible guidance on how to implement the law.
The long-awaited equalities watchdog guidance covers the contentious issue of which public toilets transgender people should use
‘I thank the EHRC for their work updating the draft Code of Practice, and look forward to continuing to work with them to ensure people’s rights are upheld across our country.’
A source close to her added: ‘Bridget believes firmly in the importance of protecting single sex spaces for women, but this can be done in a way that ensures dignity for trans people too: it is not an either or.
‘Bridget has ignored the frothing on both sides of the culture war and encouraged EHRC to focus on what matters: the dignity of everyone in our country. She will take no lectures on the rights of women just as she will never will punch down on any minority.’
The EHRC Code of Practice had to be updated after the landmark Supreme Court judgment on single-sex spaces – which found that that the definition of a woman for the purposes of the Equality Act is based on biology rather than gender identity – in April 2024.
The watchdog published interim guidance soon afterwards, making it clear that biological males cannot be allowed into women-only toilets, changing rooms or sports teams in the light of the ruling by Britain’s top court.
And it submitted its final guidance to the Government in early September, but Ms Phillipson failed to publish it.
She faced growing pressure to act over recent months as many public sector bodies, including NHS trusts, said they could not change their policies before they knew what was in the final guidance.
Just last month Ms Phillipson was accused of using the local elections not to publish the guidance, by claiming Government announcements are restricted during the ‘purdah’ period ahead of polls.
Downing Street denied the Government was trying to bury bad news by publishing the EHRC guidance amid a flurry of other policy announcements, however, and said the delay was down to trying to ‘get it right’.
The Prime Minister’s official spokesman told reporters earlier on Thursday: ‘It was in April that we received the updated draft code of practice for services from the EHRC… we've been focused on getting it right and ensuring the duty bearers are able to uphold the law.’
He added: ‘We've always supported the protection of single-sex spaces based on biological sex, and the Supreme Court's ruling last year brings clarity for women services providers, such as hospitals and refuges.’