Michael Foran had a detailed post giving his response to the EHRC's request for consultation. I agree with practically everything he wrote. This was his reponse to the Asking about sex at birth guidance:
"This part of the guidance is running together two separate issues: whether obtaining information about a person’s birth sex is necessary and whether the means used to obtain that information is proportionate.
"It should be made clear that if a policy is operating based on the single-sex exceptions in Schedule 3, then the rules about natal or biological sex can be clearly communicated to service users without the need to collect or process information about a person’s birth sex. Collecting and processing information about a person’s birth sex will only be necessary if the service provider has decided that this service is one which requires heightened screening before access to the service is granted (for example a rape crisis centre) or where a dispute arises in the context of a service which does not have heightened screening before access.
"For example, in the context of a single-sex communal changing room, information about birth sex will not ordinarily be collected. Rather, the single-sex nature of the service will be communicated to service user’s and the expectation will be that this will be complied with. In that context, a dispute may arise if a biological man uses the women’s changing room. Here, too however, service can be refused without any need to request information about birth sex, if that information is already readily observable. In this context, it is only where the service provider is unsure about the biological sex of a service user that information about birth sex may be requested.
"Similarly, in the context of a rape crisis centre where there may be more heightened screening processes, a service provider may need to ask about an individuals biological sex and should do that in a proportionate manner. A good example of this, would be the requirement of service user’s to fill out a form upon entry to the service which includes a declaration to the effect that the user understands that this is a female-only service that is only offered to those who were born female. Again, if there is a dispute over the biological sex of a servicer user, further information may be requested.
"It is unclear why a birth certificate would be requested. Under our current law, birth certificates are not a reliable record of biological sex. They cannot be used to verify biological sex. Requesting to see a service user’s birth certificate will be obviously disproportionate because there is no rational connection between the means chosen to verify biological sex and the aim of verifying biological sex. Birth certificates can’t verify biological sex.
This Code should state that, where biological sex is disputed, a service provider should make the best assessment they can, with the information available. Service providers should also be warned that providing a single-sex service which is in practice a mixed-sex service because the rules are never enforced, can lead to liability for any discrimination or harassment experiences by service users expecting a single-sex service."