Good Law Project v EHRC

The High Court has dismissed a judicial review brought by the Good Law Project and three individuals challenging the lawfulness and accuracy of the Interim Update issued by the Equality and Human Rights Commission in the aftermath of the Supreme Court decision in For Women Scotland v The Scottish Ministers.

Standing

This was a rolled up judgment which addressed both the issue of whether a judicial review could be brought and the substantive merits of the challenge. The High Court concluded that, while the three individuals had standing, the Good Law Project did not. To bring a challenge in judicial review, the claimant must have ‘sufficient interest’ in the decision challenged in the case. Citing a previous case where the Good Law Project was denied standing (R (Good Law Project Limited) v Prime Minister [2022] EWHC 298 (Admin)), the High Court concluded at [16] that merely having a sincere interest in the subject matter of a case is not enough to establish a sufficient interest as required by s.31(3) of the Senior Courts Act 1981.

The Guidance

Swift J summarised the guidance contained in the interim update as follows:

Workplaces

(i) Single-sex lavatories must be provided in workplaces.

Services

(ii) So far as concerns provisions on services in EA 2010, there is no requirement to provide single-sex lavatories.

(iii) Provision of a single-sex lavatory is permitted by the EA 2010 if that is a proportionate means of achieving a legitimate aim.

(iv) Failing to provide a female single-sex lavatory could comprise indirect sex discrimination against women.

Workplaces and services

(v) Single-sex lavatories will cease to be single-sex if transsexual persons are permitted to use them other than in accordance with their biological sex.

(vi) If trans women are permitted to use a single-sex female lavatory, all biological males must be permitted to use that lavatory.

(vii) In some circumstances equality law may permit transsexual persons to be excluded from single-sex lavatories that correspond to their biological sex.

(viii) Lavatories in lockable rooms used one person at a time can be used by anyone.

(ix) If you provide single-sex lavatories do not fail to make provision for transsexual persons.

(x) If you provide single-sex lavatories (or other facilities), where possible also provide a mixed-sex facility.

The Claimants argued that the guidance contained within the Interim Update misstated the law and was therefore unlawful. They then argued that this amounted to a breach of the Equality Act 2006, which sets out the powers of the EHRC. Finally, they argued that if the statements of law made in the Interim Update were correct, this gives rise to a breach of the rights of transgender people under the European Convention on Human Rights. Swift J dismissed all of these claims, concluding that nothing in the Interim Update gave rise to a legal error; that there was therefore no breach of the Equality Act 2006; and that there was no breach of the Convention.

The Accuracy of the Interim Update

It is worth going through each of the 10 points summarised above to explain how Swift J came to the conclusion that the update contained no error of law.

(i) Single-sex lavatories must be provided in workplaces

Swift J began by noting that, read on its own, this point is not a complete statement of the requirements of the 1992 Workplace Regulations. An employer can comply with the Regulations either by providing separate-sex facilities or by providing facilities in an individual lockable room to be used by one person at a time. However, this was not an error of law because the Interim Update made this exact point at (viii): ‘Lavatories in lockable rooms used by one person at a time can be used by anyone’. If point (i) is read with point (viii), the complete position under the 1992 Regulations is presented.

The Claimants argued that this guidance was wrong for two reasons. First, because the EHRC had misunderstood the obligations arising from the 1992 Regulations. Second, because reference to ‘men’ and ‘women’ in the 1992 Regulations must be read consistently with s.9(1) of the Gender Recognition Act such that they take on a certificated sex reading rather than a biological sex reading.

On the first point, the Claimants view was that the obligation to provide separate conveniences for men and women could be met “if an employer provided conveniences in separate rooms for men and women but then, for example, made it clear that any person could use either room’ [35]. Relatedly, the Claimants argued that the 1992 Regulations could be complied with if an employer provided a room for women but permitted both women and trans women to use it. Effectively, their argument was that the 1992 Regulations requires nothing more than the provision of facilities and says nothing about the manner in which those facilities should be used.

The High Court rejected these submissions, concluding that the argument ‘places form over substances, disregarding the obvious purpose of regulations 20-21 and 24’ which require separate provision of sanitary, changing, and showering facilities to be provided for men and women [36]. Swift J was clear that ‘the obvious albeit unspoken premise of regulation 20 is the provision of private space for each sex for reasons of conventional decency’ [36]. Similarly, the proviso in regulation 20(1)(c) that separate rooms containing convinces for men and women need not be provided where each convenience is in a separate lockable room clearly implies that ‘the objective of regulation 20 is that men and women should use conveniences in separate rooms, not together in the same room’ [37].

The Claimants argued that a female lavatory does not cease to be single-sex ‘if, for example, (a) it is cleaned by a man, or (b) a mother brings her young son to use the lavatory, or (c) a man used the lavatory in an emergency’ [38]. They therefore submitted that a female lavatory would similarly not cease to be single-sex if there was a policy of allowing trans women to use it. The High Court rejected this contention, concluding at [38] as follows:

Who cleans a female lavatory from time to time, is a matter entirely apart from whether that lavatory remains single-sex. The “emergency” example carries no weight precisely because it is an emergency – an event that is unplanned and driven by extreme circumstances. The example of the mother taking her young son to use the female lavatory is a bad example. That (and the corresponding practice for fathers and young daughters) is a common practice but is no more than a facet of ordinary parental responsibilities. No one could reasonably or seriously contend that when a mother takes her young son to use a single-sex female lavatory the lavatory ceases to be single-sex. Further, none of the examples above would be materially the same as the one of the employer who decided that the lavatories provided to meet the obligation under regulation 20 should be trans-inclusive. Rather, that employer has adopted a policy or practice to allow some biological males to use the female lavatory. An employer would not comply with the obligation under regulation 20 (to make sufficient provision in separate rooms containing lavatories provided for men and women, respectively) if he permitted the room for women to be used by some men and vice versa. That would go against the purpose of the regulation.

The Claimant had also argued that a biological sex reading of the 1992 Regulations would place too great a burden on employers by requiring them to ‘police’ the use of lavatories or risk prosecution for breach of the Regulations. The High Court concluded that an employer is not required to ‘police’ the use of lavatories beyond providing facilities separately for men and women and in good faith adopting and applying a policy based on biological sex. In rejecting the Claimants argument, Swift J noted that ‘the employees concerned would know what was expected of them’ and stressed that the notion that a biological sex reading of the 1992 Regulations would imply an obligation to ‘police’ the use of lavatories person by person and day by day ‘reveals the application of a “logic” so strict that it is divorced from reality and form any sensible model of human behaviour’ [40]. The enforcement of the 1992 Regulations requires the adoption of a clear policy which is communicated to employees. Any issues of breach of such a policy would be dealt with in exactly the same manner as breach of any other workplace policy.

None of this is to imply that an employer is free to require a transgender person to use facilities based on their biological sex. Swift J was clear that suitable alternative facilities may be required, where failure to provide them would amount to unlawful gender reassignment discrimination. This point was reflected in points (ix) and (x) of the EHRC guidance.

Finally, the Claimants argued that s.9(1) of the Gender Recognition Act required a certificated sex reading of the 1992 Regulations, not the biologicals sex reading adopted by the EHRC. Swift J made swift work of this contention, concluding that s.9(3) of the GRA operated to displace the effect of s.9(1) in relation to the 1992 Regulations, for much the same reason that the Supreme Court concluded similarly in relation to the Equality Act. Read as a whole, the 1992 Regulations adopt a biological meaning of sex, not least because that is necessary to protect the privacy of women and men when using sanitary, changing, and showering facilities [45]-[46].

In the alternative, the Claimants relied on obiter comments in Croft v Royal Mail to support the contention that when a person is in the process of undergoing gender reassignment, there comes a point where they should be entitled to use single-sex facilities in their acquired gender. Swift J ‘[did’ not attach any weight to this submission’ [50], concluding that these obiter comments had not been taken up by other judgments and pre-date the GRA. This reflects a general point I have made elsewhere that the GRA altered the previous state of the law by tying gender recognition to the process of obtaining a GRC and limiting its scope by reference to the provisions in the Act. Prior to the GRA, medical intervention conferred legal status. That is no longer the case in UK law.

(ii) So far as concerns provisions on services in EA 2010, there is no requirement to provide single-sex lavatories.

(iii) Provision of a single-sex lavatory is permitted by the EA 2010 if that is a proportionate means of achieving a legitimate aim.

Points (ii) and (iii) were not contested and the High Court concluded that they were accurate.

(vi) Failing to provide a female single-sex lavatory could comprise indirect sex discrimination against women.

The High Court concluded that this point was an accurate statement of law because it did no more than raise the possibility that it could be indirect sex discrimination to fail to provide a single-sex lavatory.

(v) Single-sex lavatories provided will cease to be single-sex if transsexual persons are permitted to use them other than in accordance with their biological sex.

The High Court similarly concluded that this point was an accurate statement of law and ‘is an inevitable consequence of the conclusion of the Supreme Court in For Women Scotland’ [53].

Bridgit Phillipson, the Minister for Women and Equalities had submitted that if female-only lavatories were provided they could continue to be single-sex even if they permitted trans women to access them. Phillipson had argued that such a lavatory could continue to rely on the protections afforded to single-sex services within the Equality Act.

Swift J noted that ‘this submission was not easy to follow’, but concluded that it is best addressed in the context of point (vi).

(vi) if trans women are permitted to use a single-sex female lavatory all biological males must be permitted to use that lavatory

The premise of this point is that a man excluded from a female-only lavatory that allowed trans women access would succeed in a claim of direct sex discrimination. Swift J concluded that a successful claim would depend on the facts of an individual case, but that

there would, in principle, be scope for a strong argument that a rule or practice that permitted trans women to use the ‘female’ lavatory but required other biological men to use the male lavatory would comprise different but not less favourable treatment on grounds of sex. However, the circumstances of the case would be decisive. (For the purposes of the EA 2010 the lavatory would be mixed-sex, but for the purposes of the Claimants’ submission in this case it would still be labelled ‘women’.) [61]

It is important to be clear what Swift J did and did not say in this paragraph. This was not a conclusion about anything other than the argument that could potentially be made in response to a hypothetical claim of sex discrimination brought by a man excluded from trans inclusive ‘female’ lavatory. Nothing in this paragraph implies that such a lavatory would be lawful, even if the sex discrimination claim brought by an excluded man failed. Swift J did not say that it would fail. All he said here is that there is scope for a strong argument that a sex discrimination claim brought by a man might fail. If it did, the lawfulness of allowing trans women to access female-only facilities or services would depend on other applicable law, including the 1992 Regulations and the claims that could be brought from female service users based on sex discrimination and the Human Rights Act.

It is important also to read this paragraph in conjunction with the following paragraph at [77]

While I am less certain than the Interim Update that a man prevented from using the Claimants’ trans-inclusive female lavatory would be likely to establish the less favourable treatment necessary to make good a claim of direct sex discrimination, I do not consider that the way the point is put in the Update is necessarily wrong. Rather, it is a point that may turn on the facts of a situation. Even though the EHRC’s obligation when exercising its power under section 13(1)(d) of the EA 2006 is to provide an accurate statement of the law, the court must apply this requirement recognising that any statement of law will rest on some assumption of fact, even if only generic. Where a body such as the EHRC has issued guidance that rests on factual premises that are permissible, the court should hesitate before concluding that the guidance as issued was unlawful. Thus, I do not consider that the EHRC’s approach to point (vi) gives rise to any legal error.

The fact that there may be an argument advanced in a hypothetical case that could offer a defence to a claim of sex discrimination brought by a man was not sufficient for Swift J to conclude that the statement ‘if trans women are permitted to use a single-sex female lavatory all biological males must be permitted to use that lavatory’ was incorrect as a matter of law.

(vii) In some circumstances equality law may permit transsexual persons to be excluded from single-sex lavatories that correspond to their biological sex.

This point was a direct reference to paragraph 221 of For Women Scotland and so was clearly correct in law.

(viii) Lavatories in lockable rooms used one person at a time can be used by anyone.

(ix) If you provide single-sex lavatories do not fail to make provision for transsexual persons.

(x) If you provide single-sex lavatories (or other facilities), where possible also provide a mixed-sex facility.

Each of these points were clearly correct in law. Points (ix) and (x) specifically warned service providers to provide suitable alternative facilities for trans people where possible. At [72]-[73], Swift J rejected the contention that providing alternative facilities for trans people or providing mixed-sex facilities alongside single-sex facilities would amount to unlawful discrimination on the basis of gender reassignment.

Taking all of this together, the High Court concluded that the guidance in the Interim Update contained no errors of law. That element of the Claimants’ challenge therefore failed.

Human Rights

The Claimants had argued that, if the statements of law made in the Interim Update were correct, that would give rise to a breach of Convention rights. I have written about the human rights aspect of single-sex spaces earlier in the week (here). The High Court dealt with this challenge in much less detail that my post, but the conclusion is broadly the same: the interpretation of Article 8 advanced by the Claimants goes much further than the caselaw of the European Court of Human Rights and any interference with the right to gender recognition caused by the operation of single-sex services on the basis of biological sex will be justified by reference to the human rights of others.

The Claimants submitted that the Interim Update implies that a trans-inclusive facility (a female facility that may also be used by trans women) is unlawful and argued that if this were true, it would amount to an unjustified interference with the Claimants’ Article 8 rights.

Swift J assumed for the purposes of the case that a prohibition on provision of a trans-inclusive lavatory is capable of comprising an interference with article 8 and does give rise to such an interference, but did note that ‘each of those propositions is open to doubt’ [98]. Based on this presumption, the High Court made two observations. First, ‘such a prohibition is of a different order to any of the issues considered to date by the Strasbourg court; in each of Goodwin, AP, and TH the applicant was transsexual and faced obstacles to recognition of her civil status’ [98].

Second, Swift J noted that ‘the absence of a trans-inclusive lavatory is not the same as no lavatory at all. Even assuming interfere with article 8 right the interference would be less significant than considered by courts so far’ [98].

There is an interesting difference between how courts compare the relative weight of civil status and access to single-sex spaces and how many trans rights campaigners do. Courts are highly likely to consider civil status such as is reflected in state documentation to be the core of the right to gender recognition where there is limited discretion on the state. On that view, access to a single-sex facility which affirms a transgender person’s identity is a peripheral aspect of the right, if it is covered at all. In contrast, many campaigners and activists seem to presume that access to single-sex spaces is core to the right to gender recognition. Without any case law to support this contention, it is hard to see how it could be true, at least as a matter of the jurisprudence of the ECtHR.

The fact that an employer could provide a mixed-sex facility in addition to a single-sex meant that neither the Equality Act nor the 1992 Regulations give rise to ‘any necessary interference with any aspect of the Claimants’ article 8 rights’.

Even if that analysis was way, the Court concluded that the Claimants’ case would still fail:

Even if there is a relevant prohibition on provision by a service provider or an employer of a transinclusive lavatory, and a consequent interference with article 8 rights, that interference would be capable of being justified taking into account the rights and freedoms of others. Justification would depend on the facts of any particular situation. Nevertheless, the fact that justification is possible and on many scenarios highly likely to be present, is sufficient to dispose of this ground of challenge. [100]

Taking all of this together, the Court dismissed the challenge on all grounds. Nothing in the Interim Update amounted to an error of law; there were no breaches of the EHRC’s duties under the Equality Act 2006; and there was no interference with Convention rights.

However, despite this very clear judgment, there has been widespread misrepresentation of what the Court concluded. I hope to write a separate post detailing this misinformation.