The wheels are falling off the false EHRC guidance

Already the wheels are falling off the false – at best – EHRC guidance on the For Women Scotland decision.

The day of the decision the EHRC: “welcomed the clarity the decision brings.” Eight days later it published its interim guidance stating: “The Supreme Court made the legal position clear, so we will not be seeking views on those legal aspects.” And four weeks later it reiterated: “The Supreme Court made the legal position on the definition of sex clear, so the EHRC is not seeking views on those legal aspects.” This position was also adopted by the Equalities Minister Bridget Phillipson and the Prime Minister Keir Starmer.

But these statements are just not true – and in an email we received on Monday evening the EHRC acknowledged this.

The email responded to a formal letter under the Pre-Action Protocol sent on Friday by Good Law Project to the EHRC and the equalities minister. Normally, a defendant in judicial review proceedings has fourteen days to respond. We pointed out that the EHRC’s interim guidance is already having – indeed it is plainly intended to have – real world effects and we asked for a response within seven days. What the EHRC’s email says is this:

“The LBA raises significant and complex issues under four separate and detailed grounds for review.  These will need to be explored carefully and properly considered.”

It’s not clear at all, is it? To date, we have received no response from Bridget Phillipson.

The EHRC had also said that it aimed to launch its consultation yesterday, on 19 May 2025. It wasn’t launched yesterday, and we don’t understand how it can operate a consultation which is predicated on a view of the law being correct if it needs five weeks to identify whether that view is correct.

We will update shortly on our next steps – we are unlikely to give it the time it seeks to understand whether what it has repeatedly reiterated publicly is correct.

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