Following the recent UK Supreme Court ruling on how a person’s sex is defined under the 2010 Equality Act, the Equality and Human Rights Commission (EHRC) issued a series of updates to its code of practice and consulted on them for six weeks up to 30 June. We are very concerned about the serious implications for the mental health of trans and non-binary people resulting from both the ruling and the updated code. We shared our concerns by responding to the consultation.
Our response draws on our knowledge of the mental health inequalities facing trans and non-binary people in the UK today. It identifies areas where the proposed changes to the Equality Act code of practice may affect the mental health of trans and non-binary people, and where it has implications for equitable access to mental health support.
Our evidence sets out our concerns about the very considerable risks the proposed new code poses. In so doing, we are aware that for many trans and non-binary people, those risks are already here, as described by one member of the community in this guest blog. We know that for many people, the distress we describe is real and present today.
The content below reproduces our responses to the consultation questions we were able to answer, relating to specific content in the proposed new code.
The mental health impacts of updating the legal definition of sex
We are extremely concerned that the revised code will severely affect the mental health of trans and non-binary people in the UK, and in some cases put people’s lives at risk. International evidence points clearly to a causal link between laws that restrict the rights of trans and non-binary people and suicidality.
The Good Law Project has noted at least one case in the UK where a trans woman attempted to take her own life after being told by her employer that she must use a men’s toilet at work in the wake of the Supreme Court ruling.
The impacts of the code carry further risks to trans people, creating an environment of fear in workplaces and public spaces. Living in fear of abuse, violence, humiliation and aggression is a risk factor for mental ill health.
We are especially concerned about the impacts and implications of the code in health care, and notably mental health care, settings. Trans and non-binary people deserve mental health care that is respectful and meets their needs in an environment where they are safe, provided by workers who work with compassion, empathy and understanding. Experiencing or anticipating discrimination, humiliation or exclusion will undermine therapeutic relationships with staff, and this risks creating traumatic experiences that exacerbate instead of mitigating past traumas. If trans people do not have access to safe spaces for mental health care, they risk missing out entirely on support – exacerbating the inequalities that already exist in access, experiences and outcomes.
We have similar concerns about other settings, including educational and custodial environments, and the effects on the mental health of trans and non-binary people, for example in schools, in colleges, in the children and young people’s secure estate, and in prisons.
It is therefore clear to us that the revised code poses a major risk to trans people’s mental health and mental health care, with potentially devastating consequences.
Trans people already face a higher risk of mental ill health, self-harm and suicide than the general population. The code, and the ways it may be interpreted in practice, are liable to make this worse still, deepening mental health inequality.
The mental health impacts of asking about sex at birth
We are very concerned that a requirement on public services to ask a person about their sex at birth will create fear and distrust. For example in the context of mental health services, a trans person who has experienced abuse, trauma and harassment which has affected their mental health may be distressed by questioning of their sex. This may mean people miss out on essential support, or find themselves placed in a setting or service which does not meet their needs or in which they are not safe. This will include mental health services provided in other institutional settings, for example schools, universities and prisons.
Justification for separate and single-sex services
We are very concerned about this section of the code, which risks undermining the safety of trans and non-binary people in mental health services, especially in inpatient and other institutional settings.
Health and care services need clear guidance that they must provide trans and non-binary people with safe, appropriate and therapeutic care in an environment that meets their needs. There is a significant risk that trans people will be excluded from services that could meet their needs, and be subject to frightening or humiliating tests or assumptions about their sex in the context of services that should be treating them with respect and compassion.
Separate or single-sex services in relation to gender reassignment
We are deeply concerned about the impact of this section on trans people’s access to public services, including mental health care. Stating, for example, that including a trans woman in a women’s mental health service would discriminate against other women in that service, could lead to the exclusion of trans women from vital support in an environment that they are safe in. The revised code focuses entirely on circumstances in which a trans person can be excluded from a same-sex service without consideration of what an equitable alternative might look like, and it is based on an assumption that their inclusion would inherently be inappropriate. The consequences of this for trans people’s mental health support could be serious and harmful.
Conclusion: The mental health impacts of proposed changes to the Equality Act 2010 code of practice
We are very concerned about the overall impact of the revised code on the mental health of trans and non-binary people in the UK. It risks magnifying the inequalities in mental health that already exist for this group of people, and simultaneously making it harder for them to seek and get help that works for them. Ultimately, this puts people’s lives at risk. We urge the EHRC to reconsider the changes by considering the impacts on trans and non-binary people’s mental health, working alongside those who will be most affected to ensure that its guidance does not exacerbate inequities or create additional risks.
