On 11 November, the Good Law Project (GLP) has began its challenge against the Equality and Human Rights Commission’s (EHRC) interim guidance in the High Court.
The move comes six months after the EHRC had published interim guidance, interpreting the Supreme Court’s ruling on Gender Recognition Certificates (GRCs) as the basis for a blanket ban on trans people using same-sex facilities.
Worse, the EHRC is arguing that there were grounds to ban trans people based on their assigned sex.
This has led to confusion and dismay among both trans people and service providers.
It appeared that what is nominally the UK’s human rights watchdog has been pushing for the wholesale exclusion of trans people from male and female facilities.
Campaigners have stated that this has set back the fight for intersex and trans rights by years.
‘Devastating impact’
Now, the GLP is in the High Court, arguing the interim guidance is legally flawed, published by the EHRC nine days after the Supreme Court ruling on the definition of sex under the Equality Act in late April. It followed the court’s decision in the case For Women Scotland Ltd v The Scottish Ministers, addressing the question:
Is a person with a full gender recognition certificate (“GRC”) which recognises that their gender is female, a “woman” for the purposes of the Equality Act 2010 (“EA 2010”)?
The EHRC had made successive updates to its guidance, which on 15 October, vanished from its website.
Working alongside Leigh Day solicitors, the GLP is representing three individual claimants whose daily lives have been impacted by the proposed guidance.
They contend that the EHRC’s hasty and simplistic guidance misinterprets the law and that the exclusion of trans people from single-sex facilities that align with their gender is unlawful.
However, the EHRC has been claiming its guidance was never intended as guidance contrary to what’s stated on its website.
It has been insisting that service providers were advised to seek specialist legal advice before taking action. Moreover, the commission states that since the guidance has been taken down, the claim is now purely academic.
Regarding this last point, GLP executive director Jolyon Maugham stated:
Our case is that the EHRC both acted irresponsibly and got the law wrong in rushing out a statement that obliged service providers to exclude trans people from single-sex spaces. We think it needs to return to its really important job of protecting human rights and abandon what trans people experience as its ideologically motivated crusade.
At Good Law Project, we have been inundated with stories about the devastating impact this guidance has had on the lives of trans and intersex people. The EHRC suggests this claim is now ‘academic’ because it has withdrawn its guidance – but the effects are lingering and appalling.
‘Shifting our focus’
Women and equalities minister Bridget Phillipson has joined the case as an interested third party. She has not explicitly outlined her position or how the case should be decided. However, her skeletal argument points out practical exceptions to binary same-sex facilities:
A theatre attendant permits a pregnant woman who faces a queue for the women’s lavatory in the interval to use the men’s lavatory
Unfortunately, whilst the GLP’s cause is important, it doesn’t have a proven record of winning trans rights cases.
That includes the case involving For Women Scotland themselves. In fact, it previously announced that it would stop taking trans cases altogether:
In 2025 we’ll be shifting our focus. Instead of funding or taking on legal cases ourselves, we’ll be supporting a trans and queer organisation with a three-year funding commitment. We’ve thought long and hard about the best way to keep fighting for trans rights and lives, and we feel that this is the moment for us to put our weight behind an organisation led by trans people.
It’s getting harder and harder to win rights for the trans community through the courts, and it doesn’t feel right to keep asking the community and its allies to carry on contributing to the enormous costs of this increasingly difficult litigation.
However, seven months ago, GLP resumed taking trans cases in an apparent U-turn.
The challenge to the EHRC’s rushed and abhorred guidance is worthy. Still, victory is not certain. How much of a difference would it really make? After all, with the Labour government about to roll out the EHRC single-sex provisions code, what real impact, if any at all, will it have for trans people.
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