High Court rules on lawfulness of the EHRC’s interim guidance

Today the High Court has handed down its decision on the lawfulness of the EHRC’s interim guidance.

Since the decision of the Supreme Court in April last year, many politicians and organisations have claimed that the law now requires trans people to be excluded from gendered spaces and services. They have claimed that if, for example, a trans woman is allowed to use the women’s toilet, then cis men must be allowed also. If press reporting is accurate, this is also the interpretation of the law that has been adopted by the EHRC in its draft Code of Practice – now awaiting approval or rejection by the Minister for Women and Equalities.

The High Court has now said that this interpretation of the law is wrong. Service providers may lawfully allow trans women to use women’s facilities without being forced to open them to cis men. And such facilities may simply be labelled for ‘men’ and ‘women’. The court has also made clear that it will likely be discriminatory to force trans people to use facilities based on their sex recorded at birth. In short, the law does not require a bathroom ban.

This is good news. It means the EHRC’s exclusionary draft Code of Practice does not accurately reflect the law – and the Minister, Bridget Phillipson, will have to send it back to be rewritten.

But the High Court also found that the EHRC’s interim guidance had been widely misunderstood, because the court did not interpret it as requiring a bathroom ban. This enabled the court to conclude that the interim guidance was not unlawful. This is despite the fact that many service providers have told trans people they have to be excluded because of that guidance.

Although the High Court decided that trans exclusion is not required in the context of service provision, its conclusions on workplaces are much more concerning. The court said that unless toilets and changing rooms are provided in individual lockable rooms, then employers will be required to offer single-sex facilities – and these must be trans-exclusionary. However, the court was clear that this does not mean additional, inclusive facilities cannot be provided, and that appropriate provision should be made for trans employees to avoid discrimination.

The court suggested that requiring trans people to use third spaces will ‘rarely’ be unlawful discrimination. We think this is wrong.

It ignores the very real risk of ‘outing’ trans people, who will struggle to explain why they have suddenly started using the gender neutral toilet on the ground floor, rather than the women’s toilet outside their office door, which they have been using for years. It is humiliating. It is harmful. In practice, it means treating trans people as a third sex – which we think is incompatible with the European Convention on Human Rights.

We have written FAQs on what we now understand the law to be following the decision. We will continue to update these as our thinking develops.

We will appeal. But for that we’ll need your help. Litigation is not cheap – the EHRC is claiming costs of almost £300k, 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.

We always knew this would be a long and hard fight. We are going nowhere. We will fight until the battle is won.