Hospitals and gyms to be able to request birth certificates of trans people to protect single-sex spaces
The Equality and Human Rights Commission said it may be 'necessary and proportionate' to ask somebody about their birth sex in certain situations, provided it is done in a 'sensitive way'.
However, in new guidance released today the EHRC also warned that asking a trans person their birth sex may open public bodies up to claims of discrimination under human rights laws.
Following April's Supreme Court ruling that sex is biological, the Commission released interim guidance that trans women 'should not be permitted to use the women's facilities'.
The EHRC today published more detailed guidance that protects single-sex spaces in line with the landmark ruling and has wide-ranging implications for workplaces, shops, hospitals and sports clubs.
Under this, any business or public body that provides women-only services will not be able to call them single-sex if it also allows trans women to use the service.
And when deciding whether a service should be women-only, organisations will now need to consider whether women are likely to be in a state of undress, whether the service is being provided because of male violence, and whether the presence of a trans person might cause 'alarm or distress'.
Trans people can also be lawfully excluded from competitive sport 'when necessary for reasons of safety or fair competition', the guidance states.
In order to protect single-sex spaces, the EHRC said that 'in many cases, it will be sufficient to simply ask an individual to confirm their birth sex'.
However the new guidance also says that if there was 'genuine concern about the accuracy of the response' then it may be 'necessary and proportionate' to ask to see somebody's birth certificate.
Trans people could even be barred from single-sex services if they lie about their birth sex, the EHRC said. The guidance adds: 'A service provider may make a rule that if someone is asked their birth sex and chooses to answer objectively falsely it will be grounds for exclusion from the service.'
EHRC chair Baroness Falkner said there has been an 'obvious' demand for 'authoritative guidance' from businesses, hospitals and sports clubs since the Supreme Court ruling.
She said: 'Where services are provided on a single-sex basis, that needs to be done in a way which is consistent with the law, which protects the rights of all service users and which ensures everyone is treated with respect and dignity.
'It's vital that service providers know what they need to do to comply with the law, and that service users have confidence that every provider is doing so.'
But the EHRC also warned public bodies that they risk breaching trans people's human rights if they ask their birth sex unnecessarily.
The guidance adds: 'Where obtaining information on birth sex is not necessary and proportionate, asking a trans person about their birth sex may risk unjustifiably interfering with their human rights under Article 8 of the European Convention on Human Rights (ECHR), which is respect for private and family life.
'Therefore, care should be taken, particularly by public authorities, that this is only done where necessary and justified.'
The draft guidance on the EHRC's code of practice has gone out for a six-week public consultation, meaning it is likely to be presented to women and equalities minister Bridget Phillipson for final approval in July.
The new guidance was welcomed as 'clear, calm, and factual' by women's rights organisations yesterday.
Maya Forstater, chief executive of charity Sex Matters, said: 'The draft EHRC guidance reflects the law as clarified by the Supreme Court, so there can be no more excuses for failing to follow it…
'The guidance will now go out for consultation, but the broad outlines are fixed. Organisations that delayed will now have to scramble to change their policies to comply with the law, as every day they delay increases the risk of legal action.'
However it has been criticised by others. Campaign group the Good Law Project (GLP) last week announced it has taken the first step in a legal challenge against the watchdog, claiming the guidance is 'wrong in law'.
Yesterday, in light of the new guidance, the group led by fox-killing barrister Jolyon Maugham said that 'already the wheels are falling off the false - at best - EHRC guidance'.
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