The MA have published their response. They seem to have piled it all into the 'anything else you want to add' question. It's not a surprising response, but it is a bit embarrassing. Most is irrelevant and I'm not sure what the ehrc will do with the information. And they seem to have forgotten that in the same way that you can say "this activity is only open to under 12s" and people are expected to heed that, you can say "this facility/session/group is only for those born female".
It does raise some issues about practicalities - i think it's possible that courts (especially lower courts) could take the view that not providing unisex loos thereby making trans people use their own sex's loos could be discrimination against pc of gr for some trans people. But they don't put it like that.
I have tried to bold the more relevant bits of the response.
https://www.museumsassociation.org/campaigns/advocacy/our-response-to-the-ehrc-code-of-practice-consultation/
I have pasted the full response in here:
"Do you have any other feedback about the content of the code of practice that you have not already mentioned?
The Museums Association (MA) is a dynamic membership organisation that campaigns for socially engaged museums and a representative workforce. We work ethically and sustainably and collaborate with partners where we have common aims and values. We advocate for and support museums and everyone who works in and with them so that the value and impact of museums and their collections is realised. We are the only organisation for all museums in the four nations of the UK. We recognise the differences in context, culture, legislation, policy and practice between the nations and we strive for equitable treatment for all our members in the UK. We are independent and not-for-profit and advocate for museums without fear or favour from governments or funding influences.
The MA is committed to equality, diversity inclusion and believes museums should be safe and inclusive spaces for all including trans staff and audiences. Our Code of Ethics for Museums asks museums and those who work in and with them to treat everyone equally, with honesty and respect. We have endorsed Trans-Inclusive Culture guidance which was published by the University of Leicester’s Research Centre for Museums and Galleries. The work was carried out in the context of growing uncertainty and anxiety surrounding this topic, and it aims to bring clarity, common sense, pragmatism and ethics to a debate that is too often distorted by misinformed, highly charged and polarised viewpoints.
We are concerned that the EHRC Code of Practice focuses on exclusion rather than inclusion. We would like the Code of Practice to provide examples of how trans people can still be included in services and spaces in the context of the ruling.
Museums have the power to inform and enrich people’s understanding of identity and belonging through the stories they tell, for example Gender Stories, currently on display at Bristol Museum uses collections to explore and celebrates the complexities of gender identity before the exhibition tours to Brighton Museum and Art Gallery and National Museums Liverpool (Gender Stories | Bristol Museums). The EHRC Code of Practice does not clarify whether people can still refer to trans women as women and trans men as men or use their correct personal pronouns. We believe that it is important for museum staff and audiences to have their identities respected. This is especially important when museums work with trans communities to improve representation in collections, exhibitions and programmes. We believe trans communities should have agency to be represented in museums in a way that is consistent with how they identify.
The definition of sex in the Equality Act is binary and does not include intersex or non-binary people. Therefore, this raises the question of how audiences who identify as intersex or non-binary can be included and represented in museums.
At a time when society is experiencing increasing polarisation and challenging issues, museums can play a role in delivering social justice, bringing us and our communities together, actively breaking down barriers and fostering conversation and reflection.
The MA’s Museums Change Lives campaign highlights how museums across the UK are doing this by working with community partners, listening to and acting on their priorities, and setting common goals to achieve more inclusive and equitable spaces. These partnerships mean that museums of all sizes are using their spaces and collections to make a positive difference to people’s lives by working collaboratively with community groups, health charities and other third-sector organisations.
For example, the Unicorn exhibition at Perth Museum centred local LGBTQ+ stories. As part of an exploration of Scotland’s national animal, the exhibition focused on the unicorn as an LGBTQ+ symbol. The exhibition was a critical and commercial success and created a safe, relevant and celebratory space for LGBTQ+ people in Perthshire. Had the museum not respected the pronouns and identities of community participants or excluded participants from using certain facilities, they likely would have caused reputational damage, isolated the LGBTQ+ community and become an unwelcoming and potentially unsafe space for LGBTQ+ people.
The guidance suggests that allowing trans people to use toilets that reflect their gender identity would put organisations at risk of legal consequences. However, it would be humiliating and distressing for a trans person to be forced to use toilets that do not align with their gender.
We think it would be inappropriate for museums to ask staff, volunteers or visitors about birth sex as this might violate trans people’s human rights to privacy. It would also be impractical for museums to do this without causing offence, distress or discrimination.
Asking museum staff to question a person’s sex would likely result in them having to profile visitors based on appearance. It asks museum staff to actively exclude visitors from certain facilities such as toilets which would likely cause harm and create a negative visitor experience. Trans people have historically been excluded from museum collections and spaces, therefore, as a sector we need to be working to remove barriers to access rather than creating additional barriers.
We encourage museums to create welcoming spaces for visitors and we believe it would be unethical and impractical for museums to gatekeep who can access services, events and toilets.
Ethical concerns aside, museum staff are overstretched and underfunded so would not have the capacity or resource to employ staff to check the birth sex of every visitor who needs to use the toilets. It is impractical to ask visitors to carry identification of sex at birth with them in order to access facilities and services.
We are concerned by the suggestion of using birth certificates to prove someone’s sex. Many people do not know where their birth certificate is, and many people such as tourists and refugees may struggle to provide a birth certificate. Overall, it is at odds with museum practice which seeks to improve access and participation in museums.