The Equality and Human Rights Commission’s (EHRC) proposed guidance on sex and gender does not “uphold the spirit of inclusion” and is “unfeasible” in practice, Museums Galleries Scotland (MGS) has said.
The national development body, which is funded by the Scottish Government and supports around 455 non-national museums in Scotland, has published its response to the EHRC’s consultation into proposed changes to its Code of Practice, statutory guidance that must be upheld by employers and service providers.
The changes come following the UK Supreme Court’s ruling in April that the protected characteristic of “sex” in the Equality Act refers to biological sex, and that a Gender Recognition Certificate does not change a person’s sex for the purposes of the act.
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According to an interim update from the EHRC, published in May, this means that “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, as this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex”.
The EHRC, the government watchdog that enforces the Equality Act, closed its consultation on the changes on 30 June and will publish its updated Code of Practice for duty bearers in due course.
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Concerns
In its response to the consultation, MGS wrote: “We have concerns that the content and process of the EHRC Code of Practice does not uphold the spirit of inclusion.
“Our understanding is that the EHRC did not consult with any trans people or trans organisations in the development of this guidance. The shorter than usual consultation period also meant we were not able to consult widely with the sector and we are mindful that their voices and experiences are missing.
“What stands out most starkly is that there is no guidance on how to include trans people, there is only information on how to exclude them. This guidance has not made sufficient effort to offer advice to museums and organisations who wish to remain or become trans inclusive on how they could do so.”
MGS said that, due to what it described as a lack of clarity in the guidance, “there is a significant potential that the human rights of trans people will be impacted for example, being banned from toilets/groups/events that align with their lived or expressed gender”.
Its response also criticised the guidance for failing to acknowledgement or reference intersex people, “despite there being 1.1 million intersex people in the UK”, a figure the organisation attributed to the University of Manchester.
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MGS raised concerns around the evidence a person would be required to show to prove their sex, and said the process of asking would put undue pressure on front-of-house staff.
Its response said: “When there is a need to ‘prove’ your sex, what proof will be acceptable given gender recognition certificates are not, nor are altered birth certificates - but how would you know?
“It is likely this role would fall on front-of-house staff, which we believe puts undue pressure on them to do this ‘in a sensitive way which does not cause discrimination or harassment’.”
Impact
MGS also described the practical application of “policing toilets” as unfeasible.
“To avoid discrimination, it would require every single person using toilets to be checked, adding substantial workload and staff costs to undertake this role,” said the response.
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“The guidance implies that to allow trans people to use toilets that best fit their identity rather than their biological sex would put organisations at risk of legal consequences. Yet, to not check everyone could lead to individuals in museums taking decisions to exclude trans people based on subjective tests, related largely to a person’s appearance.”
This would increase the discrimination and harassment that trans people face and “potentially put both trans and non-trans people in humiliating and offensive situations”, MGS said.
The funding body also warned that the guidance would have an impact on museums.
“For some museums, they may need to change their toilet facilities to avoid the higher risk of legal consequences, however, there is unlikely to be capacity or resource for many of them to do this, putting them in a difficult position,” said MGS.
The body said some museums might be forced to close temporarily to avoid breaching the law “while they invest the required time and resources to ensure adequate facilities”.
MGS added that, if museums are unable to change their facilities, “this risks trans people having no facilities to use at all”.
The organisation said it was aware of examples of members of the public “policing toilets at heritage sites by making assumptions based on stereotypes”, which it said “disproportionately impacts gender non-conforming people, lesbian women, and Black and brown women”.
“It creates an environment of suspicion and policing of everyone’s gender presentation, including cisgender people, and increases the risks of harassment, distress, and offence to everyone,” said MGS.
The response also questioned the EHRC’s guidance on “holding gendered events”, which states that if such events are trans inclusive, “this means they must also be open to the opposite sex”.
MGS said: “Many events happen in museum venues which may not be organised by the museum itself. It is not clear in the guidance at what point the venue is liable for ensuring these groups are adhering to the guidance. Or how people who run such groups are expected to identify trans applicants ‘in a sensitive way which does not cause discrimination or harassment’ and without breaching privacy rights.”
MGS said it also had concerns around what the guidance would mean for its own processes as a funder. “It is not clear what the guidance means for our funding criteria or expectations for our grant recipients,” said MGS.
The response concluded: “We strongly encourage the EHRC to review their processes around this guidance and take the necessary time to understand the impacts and needs of trans individuals and organisations committed to trans inclusion.”
Sector views
The Museums Association recently published its response to the EHRC consultation, in which it raised concerns that the “Code of Practice focuses on exclusion rather than inclusion”.
It is not clear how many other museums or sector bodies submitted responses to the consultation. A spokesperson for the National Museum Directors' Council (NMDC), representing the leaders of the UK's national collections and major regional museums, said its members had submitted responses individually.
The spokesperson said NMDC endorsed the Trans-Inclusive Culture document published in 2023 by the University of Leicester’s Research Centre for Museums and Galleries.
A spokesperson for Arts Council England said that, as an arms-length body, it had fed into the Office for Equality and Opportunity's whole-of-government response.
This outburst from MGS is concerning and misleading.
Front-of-House staff will not have to check everyone before they enter the toilet. Police Scotland don’t stop every single driver, every single day to check they have a licence, insurance, a valid MOT & are not under the influence of drink or drugs. People are expected to, and generally do, abide by the law, especially if the law is made clear to them.
However, it may be the case that MGS have issued misguided/unlawful training & guidance on how the EA2010 affects single sex spaces, and how exceptions can be applied. If this is the case MGS should be reviewing its own policies to reflect the law (as it has been since 2010) and supporting its members to do the same, rather than challenging the EHRC guidance.
Their reference to “1.1 million intersex people in the UK” is also misleading. This stat is heavily disputed, and the real figure for the UK is likely to be 0.1% of the population ie less than 70,000 people. Additionally, the status of people with DSD’s (Differences of Sex Development – what MGS are calling “intersex”) is not affected by the Supreme Court ruling.
Finally, it’s not clear why MGS thinks that black or brown women are less likely to be perceived as female than any other group of women.
It’s very surprising that the managers and Board of MGS were happy to sign off on this.