European human rights chief warns against trans exclusion in the UK

Europe’s human rights chief has warned the UK against measures that would exclude trans people from many areas of life. This follows guidance from the Equality and Human Rights Commission (EHRC), and its proposed code of practice, which would force companies and public bodies to exclude trans people from gendered spaces.

The European commissioner for human rights is in step with Good Law Project’s ongoing legal challenge to the EHRC’s interim guidance, where we argue that the regulator’s approach would be incompatible with trans people’s human rights.

Writing to the Women and Equalities Committee and the Joint Committee on Human Rights, Michael O’Flaherty says that he already raised these concerns with the women and equalities minister, Bridget Phillipson, and the EHRC chair, Kishwer Falkner.

The commissioner emphasises that the UK’s current direction of travel risks breaching trans people’s human rights, and places the responsibility on parliament and on the government to take action. The letter pinpoints “blanket practices or policies” excluding trans people from gender-segregated spaces, saying that human rights obligations require that these exclusions should be the exception, rather than the rule.

There must be “clear guidance on how inclusion of trans people can be achieved across all areas,” O’Flaherty says, “and how exclusion can be minimised to situations in which this would be strictly necessary and proportionate, in line with well-established human rights principles”.

This runs directly against the EHRC’s interim guidance, which suggests that excluding trans people from such spaces should not only be the default – but indeed mandatory. The letter also notes that these policies are likely to “out” trans people, raising additional human rights concerns.

Following the landmark decision of the European Court of Human Rights in Christine Goodwin v UK, the commissioner adds that trans people should not be placed in an “intermediate zone” where they are not quite one gender or the other. He makes clear that legal gender recognition should not be “voided of practical meaning”, and should be effective in trans people’s everyday lives. It should not be, as some have claimed, just about changing the gender markers on birth certificates.

The commissioner places the responsibility on parliament, as a “guarantor of human rights”, to make sure that UK law protects trans human rights, and avoids “inconsistencies” between “key legal frameworks” such as the Equality Act 2010 and the Gender Recognition Act 2004.

The letter notes that April’s Supreme Court ruling in For Women Scotland failed to engage with trans human rights issues, as required by the UK’s international human rights obligations.

O’Flaherty also laments a tendency to see the human rights of different groups as a “zero-sum game” that “has contributed to narratives which build on prejudice against trans people and portray upholding their human rights as a de facto threat to the rights of others”. Recent debates about violence about women and girls have been “framed in a way that restricts the human rights and freedoms of trans people”, he says, and “risks undermining the comprehensive, evidence-based approach needed to address this epidemic”.

For Good Law Project’s executive director, Jo Maugham, O’Flaherty’s letter raises big questions for the government.

“The UK stands at a crossroads,” Maugham said. “Are we going to be a nation that respects its human rights obligations, or are we going to abandon them whenever the rightwing press demands it? First immigrants, then trans people – who next, Sir Keir?”