Waiting on EHRC guidance creates dangerous limbo for trans people
Wait until statutory guidance is issued in a couple of months, the Scottish Government has called out following the landmark Supreme Court ruling. But for trans people and public bodies this in-between time creates a dangerous limbo.
The Supreme Court was clear when they defined the term sex in the 2010 Equality Act as meaning biological sex.
Yet, what seems unclear is what people should now be doing when it comes to single-sex spaces.
The Equalities and Human Rights Commission (EHRC) is expected to provide full guidance which it is legally obliged to do.
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And yesterday, Social Justice secretary Shirley-Anne Somerville stressed the Scottish Government has to wait on this statutory guidance before they advise any public bodies or the general public on what to do in terms of single-sex spaces.
However, the publication of this guidance could take months and with the ruling already issued by the UK's highest court, there now exists a dangerous limbo which puts both public bodies and trans people at risk.
The law is effective immediately.
So, in this in-between time, what do trans people, public bodies and service providers do in terms of single-sex spaces?
And could legal action be raised against them if they unknowingly mis-step in the eyes of the law?
Previous guidance from the EHRC said trans people should use the facilities they are most comfortable with.
Yet, a most recent update suggests this may no longer be the advice.
The interim update from the EHRC, published on Friday evening, said that in workplaces and services that are 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'.
However, since then, the Social Justice secretary told The Herald she can see how this update has "aggravated" trans people's fears over single-sex spaces.
But when asked what trans people should do right now, the minister's answer was: "If there are queries from individuals then they can contact the EHRC to have those questions answered."
In the same breath, she admitted getting answers from the commission on this is "challenging".
Greens co-leader Patrick Harvie told Parliament trans people say they are scared to go into their own workplaces as they didn't know they would be able to go to the toilet.
The Scottish Government has asked the EHRC to confirm they agree that no public body, service provider or other association should issue specific guidance before the EHRC Code of Practice and guidance is finalised.
If they do agree to this though, that may leave many trans people and businesses rudderless when it comes to their approach to single-sex spaces.
The Scottish Government profess they want to ensure there is "a consistent and clear understanding of the correct application of the law" for all involved in this complex area.
Yet, the law is already in effect and many cannot risk playing the waiting game.
Have no fear, we are told. The Scottish Government has established a "short-life working group". They argue this work will position them "towards a state of readiness" to take all necessary steps when the EHRC publish their guidance in the Summer but the impact of such a group is debatable.
Today, Scottish Government officials and representatives of the EHRC will meet. Let's hope that for the sake of everyone affected by this judgment, clear guidance comes as soon as possible.
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