Britain’s relatively decent legal protections for trans people have been at odds with its rampant, world-leading transphobia for well over a decade, but this is changing fast. The last few weeks have seen a dizzying assault on the rights of British trans people: first, the Supreme Court ruled that “sex” in the Equality Act refers only to “biological sex”, robbing trans people of legal protections and setting the stage for further discrimination. Then Labour’s Equalities Minister Bridget Phillipson interpreted this ruling in the most transphobic way possible, arguing trans people should now be barred from using toilets corresponding to their gender identity. Finally, last Friday (April 25), the Equality and Human Rights Commission – the public body responsible for enforcing equality and non discrimination laws, which has faced allegations of anti-trans bias for years – issued interim guidance so extreme in its hostility to trans people that it outstrips even the most conservative states in Trump’s America.  

How will this actually affect the day-to-day lives of trans people? What does the fightback look like, and how can people help? We spoke to three leading experts to find out. 

WHAT DOES THE EHRC GUIDANCE SAY?

According to the new EHCR guidance, trans women should not be allowed to use women’s facilities (such as toilets and changing rooms) and trans men should not be allowed to use men’s facilities. But that’s not all. “The way they’ve worded it essentially means that most trans people will be excluded from all single-sex spaces: trans women will be excluded from both the women’s and the men’s toilets, if we’re deemed to pass too well,” writer, artist and historian Morgan M. Page tells Dazed. 

Rachel Bowyer, a legal specialist and member of Trans Legal Project,  says that this ban may be the “most severe in the Western world”, as it covers “all organisations – private or public – and everything from toilets upwards”. It would also apply to trans pupils in schools, who will be barred from using toilets or changing facilities corresponding to their gender identity.

The guidance also dictates that women-only or lesbian-only associations should not be allowed to admit trans women, and that men-only or gay men-only associations should not admit trans men. “The practical effect of the EHRC's guidance is intended to force those who want to be kind to the trans community to be unkind to the trans community, which is a bizarre thing for a government department to want to do,” says Jolyon Maugham, the executive Good Law Project, a legal non-profit which is currently raising funds to challenge the Supreme Court’s decision. 

According to Maugham, these rules are unworkable and unenforceable. “Nobody has given a moment's thought to how you tell whether somebody is ‘biologically’ a woman or a man, whatever that means or how you would police the use of ‘single-sex’ spaces”  he says. The EHCR’s interim guidance, for now, has no legal status: as Page puts it, it’s basically just a press release.

WHAT DOES THIS MEAN FOR TRANS PEOPLE AT WORK?

While Page is concerned about people being harassed in public toilets as a result of this guidance, she believes the most significant implications will be related to employment. “If you are out as trans, your workplace is being put in a position where they have to choose between letting you continue to live your life normally or forcing you into a different bathroom,” she says. 

One of the most troubling aspects of the guidance is that it’s not just giving organisations permission to be transphobic, it’s seeking to make it mandatory – even employers who want to be trans-inclusive may be forced to discriminate against trans workers. Many workplaces wouldn’t even put up a fight, and any trans person who refused on principle to be forced into using the wrong toilet would risk being fired from their job or forced to leave. 

CAN THE EHRC REALLY FORCE PEOPLE TO EXCLUDE TRANS PEOPLE FROM PRIVATE GROUPS?

Imagine I’ve started a Gay Men’s Lana Del Rey Appreciation Society, where every Thursday, me and 25 of my closest friends gather in a pub to analyse the lyrics of our finest living songwriter. Trans gay men are welcome, of course, and anyone who has a problem with that is not. You might think this policy isn’t anyone’s business but mine and the Laniacs who’ve voluntarily chosen to join my little club, but the EHRC disagrees. If its guidance becomes statutory, then a transphobic gay man – perhaps with the financial backing of a certain children’s author – could take me to court for discrimination and win. We could be facing a nightmarish future where we are legally compelled to hang out with the most annoying and off-putting people in the country. 

This may be a far-fetched example, but according to Maugham, scenarios like it could soon become reality. “I know that barristers are already being asked to advise on this, and that lots of organisations are legitimately worried about transphobes suing them to force them, contrary to their sense of decency, to exclude trans people,” If you’re involved in any kind of gay association yourself, now is the time to write to the EHRC and let them know how you feel about this. 

WHAT ARE THE CHANCES OF DEFEATING THESE MEASURES LEGALLY?

The Supreme Court is the ultimate arbiter of UK law, but the good news is we are still bound by the European Convention on Human Rights. There is a strong legal case that the UK is in breach of its obligations to protect the human rights of trans people – including rights related to degrading treatment, privacy, equality, and fair trials and procedure – which means it will be possible to go over the Supreme Court’s head and bring a case to the European Court of Human Rights. This has happened before, back in 2002, when an ECHR ruling forced the Labour government to create the Gender Recognition Act. If the ECHR found that the UK is in breach of its obligations to protect human rights, it would be unprecedented for a British government to ignore this, says Bowyer. 

These anti-trans measures can also be fought through smaller court cases in Britain. According to Bowyer, while British courts have to abide by the Supreme Court, they have to interpret its rulings in line with the Human Rights Act, which means there’s room for manoeuvre. The Good Law Project is already working on a number of legal cases aimed at challenging the ruling.

HOW CAN PEOPLE RESIST THIS?

There are many ways to help, beyond posting ‘Protect the Dolls’ on Instagram. Write to your MP, tell them what you think about the guidance and that you’ll only vote for politicians who support trans rights. Donate to a crowdfunder raising money for the legal battles ahead: two good options are the Good Law Project and Trans Legal Clinic, a grassroots, trans-led legal firm which provides trans clients with legal support. 

The EHRC is currently working on producing statutory guidance, which would make its proposed policies legally binding – this involves a two-week consultation period in May, which is a crucial time to intervene. “One of the most useful things that cis people can do is write to the EHRC and let them know how difficult this is going to make your life; let them know how difficult it’s going to be to enforce in workplaces, the problems it is going to cause and the effects it will have on loads of people who are cis but not assumed to be the gender they were assigned at birth, or who are intersex. Be very public and vocal about your objection,” says Page.

As for what the trans community should do next, Page believes the answer is continuing to organise. “Join your local mutual aid organisation, join your local activist group, support Trans Kids Deserve Better, and get ready: it’s going to be a shitty few years, but it doesn’t have to be the end of the world: our lives have been made illegal before, and most of us found ways of getting through it. I think we’re in a better position to get through it now than we’ve ever been, if we stick together,” she says.

IS THERE ANYTHING TO BE HOPEFUL ABOUT?

It’s a bleak situation, but as last Saturday’s trans liberation protests made clear, the community is not going to take this lying down. “There are more out trans people now than ever before in modern history, we are more connected to each other than we‘ve ever been, and with that comes a great deal of strength,” says Page. “I don’t know that we are necessarily going to win anything any time soon, but I do know that we are absolutely going to go down fighting and protecting each other, and we’re going to make sure that it’s very difficult to enforce this. If the law intends to swallow us, we’re going to make sure they choke.”