On Thursday 21st May The government unveiled the new Statutory Code of Practice for services, public functions and associations. It marks a significant change in how equality law has been interpreted. Specifically, its likely impact will be to make day to day life in the UK less trans-inclusive with respect to single-sex spaces such as toilets or changing rooms. It has been compared by many (in my view accurately) to a US style ‘bathroom ban’. 

This document is intended to give a clear, accessible overview of what it says, what that means in practice, and how those of us who support trans inclusion might communicate what is happening to a larger public. 

This should not be taken as formal legal advice, either for an individual or business. Rather, this is an informal first attempt to make sense of the changes and how to talk about them in the immediate aftermath of the new code. 

Some basic notes to keep in mind

• The code is advice on civil law, not criminal. This is essentially about how services and business can operate to reduce their risk of getting sued (and win if they do). In this case, if they have single-sex spaces like toilets and changing rooms, how should they set those up and what policies they have around their use. 
• The Code does not cover toilet and changing room use in the workplace, that’s a separate set of issues. 
• The code is by no means always clear and straightforward, or even internally consistent. This is my best attempt to make sense of what it says after careful reading and consulting with subject matter specialists, but other interpretations are likely viable. 
• The code is not official yet. It is being implemented by a process called a ‘statutory implement’, meaning MPs have 40 days to object to it.
• We should realistically expect that MPs will not object to it (or not enough will) and it will become official. 

What does this mean for toilet use?

• The biggest upshot is that services must now operate on a trans-exclusionary basis . If a toilet, changing room, or other ‘single-sex’ space or service is designated as for women only this must exclude trans women. (On the basis that it must exclude people whose assigned sex at birth (termed “biological sex” in the code) is male.) 
• Likewise, a men’s only space must exclude trans men.
• Trans people may also be excluded from toilets (and other single-sex spaces and services) that match their gender at birth. For example, a trans man may be prohibited from using the women’s toilets, on the grounds that he is likely to be perceived as a man. 
• If an establishment decides to exclude trans people from both the toilets of their gender, and their sex assigned at birth (so not allow a trans man to use either the men’s or women’s) they must provide a 3rd space. For example, a gender neutral toilet, or make a disabled toilet available for this purpose. 
• For services everyone must use (like toilets), trans people should not be left without any options. 

What would happen if a trans person continued to use the toilets of their gender?

• The biggest risks here would likely be in the workplace (which the code does not cover). An employer obviously knows you and may fire you for going against a company policy. 
• For toilet use in bars, restaurants, and so on the law is structured so the obligations fall on the provider, not the customer.
• An establishment may, according to the code, challenge you based on “physique or physical appearance.” They would also likely be able to ask you to leave and/or bar you from the premises if they felt you were violating their toilet/ changing room policy.
• There are also social risks. We know instances of harassment and intimidation have increased, both against trans people, queer people, and those whose presentation doesn’t match a gender stereotype.
• Ultimately this is likely to be a case-by-case decision based on the individual, circumstance, risk tolerance, and situation. 

What rights do trans people retain?

• For toilet and changing room use trans people should not be left with no option. If an establishment tells you (or their policy says) that there is no toilet you can use, that likely constitutes discrimination on their part. 
• Establishments should not (as was suggested in a previous version of the code) be conducting document checks—i.e asking for a birth certificate. This is now ruled out.
• If the establishment asks you for your ‘biological sex’ this must be done in a polite and private manner. You should not be asked this in earshot of others, or in a way that uses demanding language. 
• You are still protected from discrimination based on gender reassignment. (Although the above prohibitions on toilet use are not held to constitute that).

How to communicate this to the broader public 

This will depend on context and will likely evolve over time. As a starting point, here’s some things I would stress:

• This is an American style ‘bathroom ban’ of the type that was widely decried by our politicians only a few years previously.
• It’s hostile to trans people’s dignity and privacy as they are expected to continually ‘out’ themselves by asking which toilets they are allowed to use.
• It is also a threat to trans people’s safety—trans women will be expected in many instances to use the men’s toilets. 
• It violates trans people’s rights under international law. (EU caselaw has long held that trans people cannot be treated as members of a ‘3rd sex’ which this does). 
• The way this has happened has been profoundly anti-democratic. No one voted for this (the Labour 2024 manifesto was moderately pro-trans). It will not get parliamentary scrutiny or (very likely) a vote.  
• This is all based on a complete lie—namely that trans women are a threat to cis women’s safety and that gender identity is being exploited to attack (cis)women in toilets. There is no evidence for this (every actual study done finds no relationship between trans-inclusivity and bathroom crime). There isn’t even anecdotal evidence for this. 
• This is all a political choice: Politicians often frame this as them just going along with what the supreme court (and/or EHRC) said. But parliament is constitutionally superior to both. At any point the government could amend the 2010 Equality act to clarify it should be interpreted in a trans-inclusive way. Or they could pass stand along legislation formalising a trans-inclusive legal regime. 

In a couple of sentences, perhaps:

This is a US-style bathroom ban that directly harms trans people’s safety, privacy, and rights based on discriminatory lies. The way it happened was dumb and anti-democratic, the government can and should legislate for trans-inclusion instead.

Credits: Many thanks to Toby Buckle for the above. For an article by Toby that puts these current events into context have a look at his recent piece in Liberal Currents.