We’re bringing a legal challenge to the EHRC’s ‘Interim Update’

The individual claimants sent a formal letter under the pre-action protocol for judicial review which requires a response within 14 days. The challenge, against the Equality and Human Rights Commission (EHRC) and the equalities minister, Bridget Phillipson, is supported by a team of barristers including two KCs and two juniors (one of whom is trans) instructed by Good Law Project.

The claimants say that the Interim Guidance, which requires toilet use based on “biological sex”, a position then adopted by government minister Bridget Phillipson, is either wrong in law or, if right, breaches the UK’s obligations under the Human Rights Act 1998, and they ask the High Court to declare the UK in breach of its human rights obligations.

In their detailed legal analysis – the first to be published following the Supreme Court decision – the individuals set out why the EHRC’s guidance is not sustainable as a matter of law. Put shortly, the definition of “man” and “woman” in the Equality Act 2010 does not read across to the different legislation which deals with toilets and the normal legal meaning of those words, which include lived gender, continues to apply. Good Law Project is publishing the formal letter in line with its transparency principles.

The claimants also say that, in interpreting the Equality Act 2010, the Supreme Court ignored its obligation in section 3 to comply with the UK’s obligations under the European Convention on Human Rights. In their case, the obligation on the High Court will be placed centre stage, and the Minister for Women and Equalities will be asked to choose whether she abandons her statement that trans people must use the toilet of their “biological” sex or defend it as consistent with the UK’s human rights obligations.

The intersex claimant will also require the Minister and EHRC to explain what spaces intersex people should use and how that stance complies with the law.

Good Law Project’s founder, Jolyon Maugham KC, said:

“the stark and needlessly cruel position adopted by the Government and the EHRC humiliates trans people by forcing them to use the wrong toilets and obliges them to reveal deeply personal information about their gender to complete strangers just to take a wee. It is deeply unkind, far removed from the national mood of mutual respect and live and let live, and is unlawful to boot.”

Good Law Project has published the answers to Frequently Asked Questions for employers and service providers here.

The costs of bringing the case are being borne by Good Law Project’s fund to challenge the outcome of the Supreme Court decision.