EHRC guidance: We’re launching our appeal on the High Court’s decision

Good Law Project, alongside three individual claimants, are appealing the decision of the High Court on the lawfulness of the Equality and Human Rights Commission’s interim guidance.

The three claimants have now applied for permission to appeal from the High Court. However, they are likely to need permission from the Court of Appeal.

We need your support to keep fighting. The EHRC is claiming costs of almost £300,000, and we have to pay our lawyers too. They think a big bill is going to stop us, because we’re not backed by billionaires or the government. But they’re wrong. Trans rights are human rights – and we will defend them.

In our submissions, we say that the High Court interpreted the workplace regulations wrongly by saying that they had to be single-sex and trans-exclusionary. We think that the regulations do not require this, and that access to workplace toilets and changing facilities should be managed under the more nuanced Equality Act framework.

We think the regulations need to be read alongside the Gender Recognition Act (GRA), which says that trans people with a gender recognition certificate become their acquired gender “for all purposes”. This Act was introduced to enhance trans people’s rights, so it makes no sense to assume that it meant to reverse earlier decisions about workplace toilets, and impose a stricter approach based on so-called “biological sex”. The High Court decision is particularly at odds with section 22 of the GRA, which prohibits employers sharing their employees’ trans status. As trans people across the UK are now finding, enforcing a bathroom policy based on “biological sex” risks outing trans employees.

The grounds also argue that the High Court’s approach to human rights law was flawed. We think it failed properly to recognise the nature and scope of the positive obligations imposed by Article 8 of the European Convention on Human Rights to protect the rights of trans and intersex people, and to avoid relegating them to “an intermediate zone as not quite one gender or the other”. It wrongly narrowed the Article 8 case law to be only about “civil status”, when in reality it is far wider. The High Court also failed to listen to the evidence of the claimants about how significantly their rights would be impacted by being treated as though they were a third sex.

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.

Despite our long track record of defending trans rights, the High Court also ruled that Good Law Project couldn’t take part directly in the case. So we have separately sought permission to appeal that decision on standing.

Good Law Project have instructed Leigh Day solicitors and a team of five barristers in our appeal, led by Daniel Stilitz KC.