We’re taking on the EHRC interim guidance in court

Good Law Project’s challenge to the Equality and Human Rights Commission’s (EHRC) interim guidance has begun in the High Court.

The guidance was published only nine days after the Supreme Court decision on the definition of sex under the Equality Act on 25 April. The EHRC issued a series of updates to the guidance, before withdrawing it entirely and deleting it from its website on 15 October.

Good Law Project, working with Leigh Day alongside three individual claimants whose lives have been upended by the guidance, argues that the guidance was rushed, legally flawed, and overly simplistic. We say the commission got the law wrong by suggesting that single-sex provision, such as women’s toilets, must be made on a trans-exclusionary basis.

The EHRC argues that its publication was not intended as guidance, and insists that it made clear that employers and service providers should take legal advice before taking any action. The commission also argues that since it has withdrawn the guidance the claim is now academic, but it continues to argue that allowing trans people to use single-sex facilities would lead to unlawful sex discrimination.

The commission also suggests that the Supreme Court’s definition of sex should apply to workplace regulations. This would mean that employers would have to either exclude trans people from facilities for “men” and “women”, or provide individual, lockable rooms.

For her part, the women and equalities minister, Bridget Phillipson, suggests that single-sex services don’t have to pass such a binary test. The minister notes that there are already exceptions – for example allowing mothers to take their male children into the women’s changing rooms – that don’t undermine the provision of single-sex services under single-sex exemptions. This would mean that service providers can be allowed to operate on a trans-inclusive basis.

We think this case also raises important human rights issues, and that the statutory provisions must be interpreted in ways which avoid conflict with trans people’s rights under Article 8 and Article 14 of the Human Rights Act. And if this is impossible, the court should disapply the relevant regulations or make a declaration of incompatibility under section 4 of the Human Rights Act 1998.

For Jolyon Maugham, executive director of Good Law Project, it’s vital the High Court recognises the disastrous impact that the guidance has had on the trans community – a community we have supported for years.

“Our case is that the EHRC both acted irresponsibly and got the law wrong in rushing out a statement that obliged service providers to exclude trans people from single-sex spaces,” Maugham said. “We think it needs to return to its really important job of protecting human rights and abandon what trans people experience as its ideologically motivated crusade.”

“At Good Law Project, we have been inundated with stories about the devastating impact this guidance has had on the lives of trans and intersex people. The EHRC suggests this claim is now ‘academic’ because it has withdrawn its guidance – but the effects are lingering and appalling.”