EHRC guidance: We’re heading to the Court of Appeal

After six months of waiting, we have now heard back from the Court of Appeal in our challenge to the lawfulness of the Equality and Human Rights Commission’s interim guidance. 

The court has granted three individual claimants – supported by Good Law Project – an oral hearing, as they seek permission to appeal the decision of the High Court made in February this year.

Now, to continue our challenge, we need your support.

We argue that the High Court interpreted the workplace regulations wrongly by saying that they had to be single-sex and trans-exclusionary, and that its approach to human rights law was flawed. We also say that, based on the findings the High Court made – that there was a “strong argument” that it would be lawful to provide separate and equal men’s and women’s toilets which were operated on a trans-inclusive basis – it should have decided that the interim guidance was unlawful. We expand on these points in our detailed grounds of appeal (PDF) and skeleton argument (PDF).

The order (PDF), handed down by the Court of Appeal on Thursday afternoon, says that the hearing ought to take place before the end of the year “if at all practicable”. 

In her reasoning for the order, Lady Justice Andrews suggests that the challenge to the interim guidance has now been “superseded” by the code of practice. We believe this is wrong. The code only relates to service providers, public functions, and associations. At the heart of our interim guidance challenge is the provision of facilities in the workplace – these are not covered by the code at all. We hope to convince the Court of Appeal that our challenge to the interim guidance remains relevant, and should be heard in full.

We are, however, supporting a separate challenge to the code of practice.

In a separate order (PDF), the Court of Appeal rejected Good Law Project’s application to appeal on standing. We will continue supporting our individual claimants with their challenge to the interim guidance.

From our conversations with many trans individuals, and with organisations across the sector, we believe that the interim guidance, and the workplace bathroom bans which have resulted, are continuing to cause serious harm. We think the High Court’s decision, if it stands, will further increase that harm.

For our trans rights lead, Jess O’Thomson, this case hangs on the “serious vulnerability of trans people in the workplace”.

“It’s not a context where you can just walk out and go next door,” O’Thomson said, “you risk losing your livelihood. Employers have immense power over their employees. And being outed in front of colleagues is a massive breach of privacy. Forcing trans people into third spaces is not the answer. It’s discrimination – and it’s a breach of their human rights.”

We need your help to fight back. We aren’t funded by a transphobic billionaire. We only have each other to rely on. But we know that – together – we are stronger than them.

Trans rights are human rights – they must be protected. We hope that the Court of Appeal will agree with us. But, if it doesn’t, our fight won’t end there. This is still the only route up to the European Court of Human Rights – and we’re ready to take it all the way.