Urgent Concerns Mount Over EHRC Guidance: A Step Back for Equality

Urgent Concerns Mount Over EHRC Guidance: A Step Back for Equality?

A new guidance from the Equality and Human Rights Commission (EHRC), following the Supreme Court hearing of For Women Scotland v Scottish Ministers, has sparked significant concern and controversy. If, as rumoured, this guidance aligns with earlier interim and draft versions, it could potentially have a devastating effect on the rights and well-being of trans people and other women who do not fit stereotypical presentations.

This isn’t just a minor tweak; it’s a serious erosion of protections and a misinterpretation of the law itself.

Numerous organisations and individuals have raised grave concerns about the process behind this guidance, highlighting a perceived biased interpretation of the law by the EHRC and a failure to uphold its duty to promote equality for everyone.

A Chorus of Opposition

The pushback against this guidance is broad and strong:

• The Lemkin Institute has gone as far as calling for the Global Alliance of National Human Rights Institutions (GANHRIGANHRI The Global Alliance of National Human Rights Institutions brings together and supports national human rights institutions to promote and protect human rights Global Alliance of National Human Rights Institutions https://ganhri.org    ) to withdraw accreditation from the EHRC, citing violations of the Paris Principles and the erosion of protections for transgender and intersex people.
• 33 Labour MPs wrote to the EHRC, detailing a significant number of concerns about the interim and draft guidance.
• Hundreds of doctors and academics have contacted Equalities Minister Bridget Phillipson, pointing out the oversimplification of ‘biological sex’.
• BMA Resident Doctors condemned the Supreme Court’s ruling on biological sex, calling it “biologically nonsensical” and “scientifically illiterate”.
• Crucially, charities running more than 80 refuges have vowed to continue accepting trans women, stating they do not see them as a threat to other users.
• A powerful open letter, “Not in My Name,” has garnered over 42,000 signatures from women in support of trans rights. It emphasises that these women do not need protection from trans people and concludes with a clear message: “We welcome trans people. We demand that trans people are able to live their lives safely and with dignity. We believe that trans women are women and trans men are men. The Supreme Court ruling is not a victory for feminism; it is a victory for patriarchy. And when the patriarchy wins, everybody loses. This ruling does not speak for us. Not in our name”.

“Apartheid” and Misinterpretations of the Law

The interim and draft guidance have been described as amounting to “apartheid”, creating a total exclusion of trans people from spaces and services they have used for decades without credible issues. The guidance reportedly implies that a trans person might be unable to use either female or male spaces, forcing them into a hypothetical “3rd space” that may not exist, potentially causing service providers to break existing laws like GRA section 22 or GDPR regulations.

This outcome appears to be in direct contradiction to the Supreme Court’s own comments, which stated that its judgment should not be seen as a victory for one side and that it “would not be disadvantageous to or remove protection from trans people”. The Supreme Court ruling, which was not a victory for either side, was interpreted by some as a green light for the EHRC to issue guidance that could potentially undermine the rights of trans people. Furthermore, the protections under the Equality Act (EA) for Gender Reassignment are still explicitly stated to be extant.

A core point of contention is the Gender Recognition Act (GRA). Parliament’s clear intention when passing the GRA was to recognise trans people as their acquired gender “FOR ALL PURPOSES”. Section 9(1) of the GRA explicitly states that upon receiving a full gender recognition certificate, a person’s gender, and consequently their SEX, becomes the acquired gender for all purposes.

This means that, legally, a trans woman’s sex becomes female for all purposes, with the exception of the specific section on sex discrimination under the EA.

The concept of ‘biological sex’ itself is highly complex. While the Supreme Court referenced an ‘ordinary’ definition of sex as ‘biological,’ medical experts highlight that sex registered at birth is often based on a cursory glance at external genitals. They argue that there isn’t one specific, easily applied criterion, pointing to a range of factors like physical appearance, physiological, genomic, phenotypical, and neurological aspects. This complexity challenges the binary understanding of sex and supports the need for a more inclusive approach to gender identity.

Therefore, it is “much more complex than what was written on the birth certificate”. For instance, blood tests for a trans woman should be monitored in the female range.

Equality Act: Protection, Not Discrimination

The original, and arguably still extant, purpose of the Equality Act was to protect against discrimination, not to promote it, especially for those with defined protected characteristics. Critics argue the draft guidance exceeds the intention of the Act by stating that exclusion is mandatory for a service to remain “single sex,” even while permitting exceptions for young children of the opposite sex.

The Equality Act actually specifies that services could (not must) exclude trans people if it was “a proportionate response to achieve a legitimate aim,” suggesting that mandatory exclusion was not its primary intent. The Act’s intention is to include and find ways to achieve inclusion, rather than mandating discrimination. Service providers and employers are not obligated to provide communal single-sex services and can implement facilities based on gender presentation or individual needs to avoid discrimination.

Broader Implications and Unnecessary Change

Beyond these points, numerous other significant legal and practical shortcomings are highlighted:

• The Gender Recognition Act, particularly sections 2, 9, and the privacy protections under section 22, which make it a criminal offence to disclose a person’s gender/sex history if they hold a GRC.
• Compliance with ECHR provisions (e.g., 3, 8, and 13) and consequent Human Rights Act provisions.
• Treatment in accordance with acquired genders as per the Istanbul Protocol.
• GDPR regulations.
• Workplace Health and Safety Regulations.
• The financial and consequential implications on employers and service providers.

With approximately 9,000 GRC holders and about 48,000 trans men and 48,000 trans women in England and Wales, these numbers represent a relatively small minority.

The law, it is argued, has not fundamentally changed, and there were no significant, widespread problems with the use of services prior to this guidance. Therefore, many question the necessity of evolving existing codes of practice, guidance, policies, and arrangements at significant cost to service providers and to the detriment of the rights of a protected minority.

The current EHRC guidance, if implemented as rumoured, represents a significant concern for human rights and equality advocates, raising profound questions about the protection and inclusion of transgender individuals in society.