Labour MPs doubt EHRC guidance on court’s biological sex ruling is workable

Exclusive: Commons motion calls for code of practice to be blocked amid concerns over impact on transgender people

A number of Labour MPs are increasingly doubtful that the guidance on how organisations should implement the supreme court ruling on sex as it applies in the Equality Act is workable in the real world, with some predicting it will unleash a wave of competing legal claims.

A total of 135 MPs, 69 of them from Labour, have signed a Commons motion calling for the code of practice drafted by the Equality and Human Rights Commission, approved last month, to be blocked, primarily because of worries about its impact on transgender people.

While it is very unlikely that the guidance will be stopped – that would need the government to grant a vote, which it has declined to do – there is mounting pressure from backbenchers for ministers to listen, and even to consider new legislation to come up with a solution.

Concerns among some MPs increased after the EHRC’s chair, Mary-Ann Stephenson, and its chief executive, John Kirkpatrick, were quizzed on the practicalities of the code by the Commons women and equalities committee last week.

Some committee members praised Stephenson and the EHRC for, they said, protecting single-sex spaces for women.

The guidance, which follows last year’s supreme court ruling that sex in the Equality Act refers only to biological sex, sets out that trans people should not be allowed to use facilities such as toilets and changing rooms for the gender they live as, and in some cases also for their biological sex. Instead, gender-neutral “third spaces” should be provided where possible.

But much of the hearing involved how the rules would work in practice. Kevin McKenna, a Labour MP who is a former nurse, questioned whether trans patients in hospitals could really be cared for in gender-neutral side rooms, given these are scarce and often needed for clinical reasons, such as for patients who are infectious.