My Lords, I welcome the opportunity to respond to the Statement on the draft Equality Act 2010 code of practice. The publication of the draft code is welcome, and I was pleased to see greater protections for breast-feeding women, and greater clarity for people with disabilities. Those are important improvements.

The Conservative Party has always been clear on this issue: vulnerable women and girls must be protected. We welcome the judgment of the Supreme Court, and we will always stand up for single-sex spaces to be protected in line with the law. That is the right approach; no matter what pressure they may be under from their friends in the unions and the Liberal Democrats, the Government must do the right thing and protect women and girls. However, public bodies, employers, schools, service providers and women across the country have been waiting many months for clarity following the Supreme Court’s judgment, and I cannot understand why they have had to wait so long.

Before I speak to the detail of the code, can the Minister please explain why the Government took so long to bring it forward? We understand that the EHRC first submitted its draft to Ministers last September and, during that period, organisations responsible for implementing the law were left without the clarity they needed, despite the Supreme Court having already provided legal certainty on the meaning of “sex” within the Equality Act. In particular, we know that many NHS settings have failed to comply with the Supreme Court judgment while waiting for the updated code of practice. Does the Minister recognise that this unacceptable delay has caused material harm to women, who should have had their own spaces protected much sooner? It is not just the NHS. Many other organisations have spent the past year attempting to navigate their responsibilities without the updated code of practice. Does the Minister accept that this delay has contributed to confusion for service providers and uncertainty for those seeking to access services?

Ministers have said that the delay was a result of changes to the code of practice being required. As noble Lords will know, Section 14(7) of the Equality Act 2006 allows for the Secretary of State to approve the EHRC draft code of practice or to reject it with written reasons. It does not provide for the Secretary of State to withhold approval pending changes. Can the Minister therefore explain what happened in this case? What legal basis exists for the Secretary of State to put approval of the code of practice on hold while the EHRC makes changes to the code of practice? Does the Minister agree that what happened in this case runs contrary to the process conceived by Parliament when the Act was put into law?

However, whatever the legal basis of that decision, transparency would certainly help to build trust in the way Ministers have approached this issue. Can the Minister set out what changes, if any, the Government requested to the EHRC’s original draft before laying it before Parliament? Will the Government publish details of any substantive amendments that were made and the reason for them? Can the Minister say whether any changes to the original draft demanded by the Secretary of State were not reflected in the final draft laid before the House before recess?

The Supreme Court has provided legal clarity, and organisations now require operational clarity. Can the Minister assure the House that government departments, bodies and public authorities will move swiftly to review and update their own guidance, policies and procedures so that they are fully consistent with both the judgment and the code? What process will Ministers follow to ensure compliance, and will the Minister commit to updating the House on the progress that public bodies, in particular the NHS, are making towards full compliance with the code of practice? While Parliament has a duty to uphold the rights of women and girls and the lawful provision of single-sex spaces, it is equally important that everybody is treated with dignity and respect. Can the Minister outline what practical support will be provided to schools, hospitals, local authorities, charities and businesses to assist them in implementing the code consistently and lawfully?

Finally, the draft code of practice contains an inaccuracy. It states:

“Information about sex is likely to constitute special category data for the purposes of the Data Protection Act 2018 (DPA) and UK General Data Protection Regulations (GDPR)”.

Special category personal data is described under Article 9 of the UK GDPR; the category of sex is not included as such data. Will the Minister look into this and ensure that a correction is made to the code of practice? I look forward to the Minister’s response.

My Lords, I thank the Minister for this Statement on a profoundly important yet sensitive matter. When we debate the updated code of practice, we must remember that at the heart of this issue are fellow citizens. If we listen closely, we find that people affected by the code are driven by exactly the same fundamental human needs: respect, dignity and the desire to live with peace of mind. We hear the deeply held convictions of some women who look to single-sex spaces for privacy, companionship and dignity. For them, preserving the integrity of these spaces is not an abstract legal concept but a practical requirement for their dignity. We also hear the equally profound anxieties of some transgender individuals who fear that the new guidance will effectively lock them out of public life, strip away their dignity and subject them to humiliation or hostility when simply trying to access basic services. Both views are valid, and we must not ignore either.

As a House and as parliamentarians, our duty is to look objectively at the governance, economics and practical workability of this draft code in the light of the laws of the land. Following the laying of the draft code, the final stage impact assessment reveals a striking economic reality: the central estimated annualised costs sit at £81.7 million, with an overwhelming 82% of this financial burden falling squarely on the private sector. Further, 60% of the entire 10-year cost profile is front- loaded in the first 24 months.

Yet the assessment admits an extraordinary level of uncertainty and contains no independent verification from the Regulatory Policy Committee. Crucially, the document explicitly acknowledges that, due to severe data limitations, the Government have been entirely unable to assess the specific impact on small businesses and micro-businesses. The Government are, in effect, flying blind, passing a statutory framework that could heavily penalise local businesses without any hard evidence or baseline data on how smaller enterprises are supposed to absorb these costs. We must look also at how this code will work on a Wednesday afternoon for, say, a local charity or small independent business. Right now, it will create significant contradictions that would leave them exposed to litigation. To that end, I wish to press the Minister on four critical issues regarding implementation.

First, what practical or financial support will be provided to small businesses that simply lack the physical space or capital to build the self-contained gender-neutral facilities recommended in the impact assessment?

Secondly, what operational guidance do the Government intend to issue to public-facing service providers regarding the precise mechanism by which front-line staff can lawfully and proportionately verify an individual’s sex recorded at birth without breaching Article 8 of the European Convention on Human Rights, GDPR rules on special category data or Section 22 of the Gender Recognition Act 2004?

Thirdly, what assessment have the Government made of the potential legal conflict for service providers between the provision in the draft code that a single- sex service will lose its statutory status if it includes an individual based on their gender reassignment characteristic and the ongoing statutory requirement under the Equality Act 2010 to demonstrate that the exclusion of that individual constitutes a proportionate means of achieving a legitimate aim?

Fourthly, the code will pass via the negative procedure unless Parliament acts within 40 days. Given the concerns about the uncertainty and costs it will create, will the Government consider supporting a Joint Committee of both Houses to give these questions raised by the ruling and subsequent code the parliamentary scrutiny they have not yet fully received?

If we want a society that is fair, we cannot pass down ambiguous guidance that forces business owners, charities and low-wage front-line staff to act as constitutional lawyers, risking complicated litigation. They need clarity and a code of practice that is operationally and economically viable. Above all, we need an approach that treats all individuals, and those trying to run services for them, with the certainty and dignity they deserve. I look forward to the Minister’s response.

I thank both the noble Lord and the noble Baroness for their questions and contributions.

I start by picking up the point made by the noble Lord, Lord Scriven, and addressing the noble Baroness, Lady Stedman-Scott, about the general principle. We forget what the Supreme Court itself said in its judgment, which is, of course, repeated in the Statement. It is worth repeating. The court

“warned against reading this judgment ‘as a triumph of one or more groups in our society at the expense of another’. That is why this Government will always treat these issues sensitively and will refuse to use any group as a political football. The Government have been clear that we will protect single-sex spaces based on biological sex where they are needed, such as women’s refuges. We have also been clear that everyone, including trans people, should have the right to access the services they need in a way that is respectful, protects dignity and privacy, and ensures adequate provision”.

That is where everybody in this House should be focused.

As the noble Baroness knows, having participated in a number of Oral Questions about the timing of the code, we have repeatedly said that it is important the code gets this right or it will lead to further legal challenges. I have seen the letter from the shadow Minister for Equalities on the issues of delay and changes. It is for the Equality and Human Rights Commission to answer that specific set of questions. Our focus, as I have repeatedly said, has been to make sure that organisations have the guidance they need and that it is clear and practical. We have made sure of this by doing a thorough job of ensuring that the duty bearers have the guidance they needed to comply with the Equality Act. The EHRC has been clear that it made a decision to amend the draft code following feedback, consultation, responses and legal advice. That is where we are.

One of the key elements is to ensure proportionality, and the noble Lord, Lord Scriven, has raised a valuable point, particularly about costs. The commission has been clear that service providers might comply with the law in different ways due to different factors, such as physical building constraints. There is no blanket requirement for a particular approach and duty bearers should take a proportionate approach. For example, a small café might have only one individual lockable toilet for all customers, and there are lots of examples like that.

The estimated costs that the EHRC has provided have been spread across different parts of the economy, not just one sector of business, over a 10-year period. Many of those costs will be one-off, rather than ongoing. This is about complying with the law and the draft code provides guidance to support organisations to do so.

On an issue that has been raised before, I have been clear, as has my noble friend Lady Smith, that the Supreme Court judgment was clear and must be complied with. All government departments must comply with it; we have been clear about that. The Cabinet Office has updated Civil Service model policy and departments will work to implement the policy changes as soon as possible. Compliance with the law is clear. We will continue to keep our guidance updated, to ensure that it takes account of the latest case law and any future updates by the EHRC to the code of practice on employment. The noble Baroness, Lady Stedman-Scott, is right that there are other changes in the code that have brought it up to date, particularly around breastfeeding mothers and people with disabilities. We should see it in that context, and no doubt there will be periods when we need to do that.

The noble Baroness raised the issue of the NHS. The NHS is for everyone. The Secretary of State for Health is clear that NHS services should protect single-sex spaces based on biological sex, while at the same time protecting the rights, dignity and safety of trans people. The Government have taken action by publishing the draft code, and NHS England will be publishing guidance to bring it into effect in due course.

I have said before that in the past, the debate on this issue has been incredibly toxic. I think that everyone in this House wants to ensure that we can move forward respectfully and compassionately and understand the needs of all our communities.

The noble Baroness, Lady Stedman-Scott, knows that I have been part of a situation where a Government decided that a category of people in our community was not safe to work with children. That was Section 28. We should not forget that and the consequences of that. I am absolutely determined that we should protect everyone’s interests, including those of women, women’s safe spaces and, of course, single-sex spaces, as committed by the Supreme Court, but we must not forget that trans people deserve respect too, and that is what we will continue to do.

My Lords, I remind all noble Lords that we are now moving on to up to 20 minutes of questions—and I mean questions—from Back-Bench Members.

I very much welcome the last part of my noble friend’s answer. I would like clarification on two points, because the word “sensitivity” has been used, and indeed is used in the guidance. I would like my noble friend to confirm that it is discriminatory to involuntarily out a trans person; in other words, to reveal that they are trans without their consent.

My second question to my noble friend is: what would we say to a young person who has lived as their acquired gender throughout their adult life, completed the Gender Recognition Act’s demanding process and obtained legal recognition and is now told that their certificate confers no additional right to be treated as their acquired sex when accessing services? That is not about women-only services, which absolutely are protected. Does my noble friend think this is the outcome that Parliament intended?

We have to respect the judgment of the Supreme Court. It has interpreted the Equality Act, and I know that my noble friend—and I think everyone on this side of the House—is proud of the Equality Act and what it has achieved. We are absolutely determined to ensure that the rights that are given in the Equality Act that apply to trans people are properly maintained. She is absolutely right on that. But it is important that we have—my noble friend Lady Smith said it on Monday—a tradition in our country to respect people. There is a British way of doing things. The idea that someone will be challenged simply because of the way they are dressed or the way they look is not acceptable. Most of my trans friends happen to be trans men. The idea that a trans man will be challenged for going into the women’s toilet is another issue. We should be promoting common sense, dignity and respect in relation to this decision.

On the subject of proportionality so eloquently spoken of by the noble Lord, Lord Scriven, does the Minister agree that there have been only four reports of alleged criminal behaviour by trans people in lavatories since 2022? Does he not think that the obsession with lavatories does us no credit whatever and that we should leave it to those who are the proprietors of lavatories to reach common-sense conclusions about their premises?

I hear what the noble Lord says. What we do have is a decision of the Supreme Court and a decision of the independent Equality and Human Rights Commission about how that guidance should be complied with. I do not understand the fixation on toilets either. The point was raised about safety; we were talking about women’s refuges and the need for single-sex spaces. But when I am in Spain, no woman or man worries about where they go to the toilet—we use the same one on a regular basis.

My Lords, although I very much welcome the decision of the Supreme Court, there may be room for statutory exemption in respect of persons who have fully transitioned—that is to say, certificated and having gone through the gender-affirming surgery. There is a case for saying that they should be entitled to assert their acquired gender. I will cite just one case. I have a friend, a biological male, who was married as such and had children as such, and who has transitioned, is fully certificated and has gone through affirmative surgery. It is not reasonable to say that a person in that situation, albeit a biological male, should, if circumstances arise—in this case they would not—go to a male prison. That would be nonsense.

I hear what the noble Viscount says. The Supreme Court judgment is clear about biological sex; we have to and we will ensure compliance. The independent Equality and Human Rights Commission has come up with guidance. That guidance has gone through a lot of process and consultation, and people have been listened to in respect of that. But we have to work our way through in a proportionate way. As I say, trans people are not just trans women but also trans men, and how we accommodate all these things is really important. We must respect their rights under the Equality Act but we must also fully comply with the Supreme Court judgment.

My Lords, I went out with two female friends, one of whom was thrown out of a women’s toilet because she was wrongly identified as a man. As the guidance allows trans men to be excluded from single-sex spaces on the basis of appearance, how does the clear and practical guidance protect masculine-looking women from being excluded from women-only spaces?

I come back to my original response. The idea that somebody is making a judgment because of the way someone is dressed or looks is inappropriate. I think it is pretty obvious if a man goes into a women’s toilet by error or sometimes due to absolute need—which I have done, once, although I was told quite quickly, “This is not the place for you”. But common sense applies here. I have spent my life with the LGBT community and have spent my life visiting and participating in parties in clubs and bars where there is a whole range of people, whether feminine men or masculine women. We should not be making a judgment on that. It is British common sense which will apply in the application of this code. The idea that someone is told that they cannot use a toilet because they look a particular way is not very British.

My Lords, the Minister referred to the British way of doing things. Does he therefore agree that although various speculative issues have been raised around enforcement, in reality a combination of self-restraint, respect for the law and social discouragement from breaking it should eliminate most issues, particularly over time, rather like with the smoking ban? It is very rare to see anyone smoking where it is illegal to do so. There is no reason to think that the enforcement of this law and the Supreme Court judgment should be any different.

I am not sure I fully understand. I hope the noble Baroness is agreeing with me that we will take a common-sense, British way. I have been in a theatre when there has been a very short intermission, the gents’ toilet is empty, I have encouraged women to use it and they have. That is a common-sense approach. When it comes to toilets, we know exactly how to behave.

My Lords, I thank the Minister for his tone and approach—

My Lords—

We will hear from the noble Baroness, Lady Hunt.

We have loads of time; it is all going to be okay.

I thank the Minister for his approach and response to these questions. It has been 12 months of trying to clarify the code and clarify the interpretation from the Supreme Court. I am seeing a significant degree of confusion about how the law will be implemented and how the code is to be interpreted. There is almost an accepted assumption that these things will be tested through litigation and case law. A number of small organisations, as the noble Lord, Lord Scriven, referred to, are worried about being litigated against, and trans people are worried about being shouted at. It is our job to create good law. Does the noble Lord think we are now in a position where we can say that we have created good law and can stand by it?

I think the noble Baroness knows my position. As I said at the beginning, the Equality Act is good law. The Gender Recognition Act is good law. The Supreme Court has made an interpretation in respect of single-sex spaces, which we should comply with. The Supreme Court ruling explicitly stated that trans people remain fully protected by the Equality Act from discrimination and harassment. We are proud of the Equality Act and have no plans to change it. We have had this incredibly toxic debate for some time. Let us now settle it once and for all and get back to understanding the needs of individuals rather than using them as a political football.

My Lords, I have a very specific question. We are talking about not being able to challenge somebody who is a biological male. If there is a game of rugby, a women’s team turns up and they think there is a male on the other side, how on earth are they supposed to prevent themselves being in serious danger if they are not allowed to ask?

You are not going to ask on the football pitch or the rugby pitch. In the code, there are respectful ways to ask certain questions. It is not done, as the noble Lord pointed out, by saying, “Well, you can’t go in that toilet”. Governing bodies have their rules and processes. The code is quite clear about how such things are done. I say to the noble Baroness: read the code and better understand its implications.

My Lords—

My Lords—

We will hear from Labour, then the Cross Benches.

My Lords, I will be finished in a moment. I too thank the Minister for the tone that he has struck today.

We are touching on an important issue. The code leaves us in a position where someone who has a gender recognition certificate has no additional protection under the Equality Act. The Gender Recognition Act was designed specifically to remedy trans people finding themselves in an intermediate legal zone. Given that, do the Government envisage that we may need to honour the commitment that Parliament made to trans people in 2004 when it passed the Gender Recognition Act?

I hear what my noble friend says, but the ruling made clear that “sex” in the Equality Act means biological sex. That has implications for gender recognition certificates, which no longer change one’s sex for the purposes of the Act. We will look at gender recognition reform, but we are clear that we will always support single-sex spaces based on biological sex. Everyone throughout society deserves dignity, respect and protection when using public services and healthcare. That will be our position. Our priority is that services ensure that they are complying with the law. This ruling has now provided clarity to service providers, and we also have the guidance.

My Lords, I declare an interest as chair of the Equality and Human Rights Commission, under which this code was written. The Minister has referred several times to the fact that the Government interacted with the EHRC to take feedback, consultations and, as the Minister in the other place repeatedly mentioned, engagement. Given the meaning of Section 14(7) of the Act, which protects the EHRC’s independence, and given that the only role for the Government that it identifies is to write to the EHRC if they do not agree with it and to make that letter public, will he now agree to provide, as the noble Baroness, Lady Stedman-Scott, asked, all the changes that they have made to that in violation of Section 14(7)? Or is he going to wait until there is another judicial review against the Government to get transparency on this matter? That is all we ask: transparency.

I do not accept the premise of the noble Baroness’s question. I said in response to the noble Baroness, Lady Stedman-Scott, that the EHRC itself last month outlined that it had made a small number of changes based on feedback, consultation responses and further legal analysis on its part. We have been clear that organisations must follow the law. Our focus has always been on making sure that organisations have the guidance they need and that it is clear and practical. For example, one change made clear that associations can define their membership on the basis of more than one protected characteristic—for instance, a walking club for Muslim women or an LGBT+ support group—and continue to operate lawfully. We have not put pressure; the EHRC has explicitly said that the draft code was amended to make the law clearer for service providers and others. The EHRC has been clear that it made the decision to amend the draft code following feedback, consultation responses and legal advice. That is the position.

My Lords, despite the Minister telling me on two previous occasions that all government departments were already compliant with the law in the services they provide, he confirmed in a Written Answer to me that:

“Where necessary, government departments are carefully reviewing the ruling’s potential implications … to ensure that their policies and guidance are legally compliant”.

The Supreme Court ruling was last April, so departments have had over a year. Can he confirm—if not at the Dispatch Box, in writing—the results of those reviews for each government department, setting out which are now fully compliant with the law and which still have work to do?

Everyone must comply with the law. The Supreme Court decision is very clear, but it takes time to amend guidance and policies because, as I have said to the noble Lord before, they are not just about this single issue. Some policies particularly cover employment and, of course, the guidance now issued is about service providers. As I said in my response to the noble Baroness, Lady Stedman-Scott, the Cabinet Office has updated Civil Service model policy and departments will work to implement the changes as soon as possible. The policy documents are being updated—that is a current situation —but compliance with the law is what they are required to do. If there is any doubt, they seek legal advice.

My Lords, the Supreme Court is the ultimate arbiter of the interpretation of law as it is, including where there are conflicting statutes. Everyone else must grapple with the consequences. The Government’s equality impact statement suggests that a consequence is that some trans people may be left with no adequate provision whatever. I know that there are young trans people in particular who, as suggested by the right reverend Prelate the Bishop of Manchester the other day, are feeling depressed to the point of being suicidal about this ongoing row. What will the Government do to ensure adequate provision as well as adequate respect, and what will Parliament do to decide what the law ought to be as opposed to what it currently may be?

I hear what my noble friend is saying, and I think she had a response from my noble friend Lady Smith, the Minister, on Monday about that. I repeat that I and the Government are proud of the Equality Act. We do not want to see it challenged. We will continue to take that position. I reassure my noble friend that, on a range of services for trans people, we are committed to ensure that they are improved and maintained. We have Michael Brady’s review on NHS services. It is important that we have gone from the period of the debate being toxic: that somehow trans people are a threat. We know why single-sex spaces are important, and that is the Supreme Court’s decision. We also know that the consequence of this toxic debate is to make trans people feel threatened. That is what we need to address as a society to ensure that they do not feel threatened and that they feel welcome.