Is an ECHR showdown on women's rights and trans rights inevitable?

The Council of Europe’s human rights commissioner, Dr Michael O’Flaherty, has written to the Women and Equalities Select Committee and the Joint Committee on Human Rights to raise concerns about the implementation of the Supreme Court judgment in For Women Scotland v The Scottish Ministers [2025] UKSC 16.

In his letter, which was accompanied by a separate letter addressing the policing of pro-palestine protests, O’Flaherty stated

My observations relate to the need to respect the human rights of trans people, in line with the UK’s international human rights obligations, including as regards further steps following the Supreme Court’s judgment in For Women Scotland Ltd. v. The Scottish Ministers. This is particularly important as the Supreme Court did not engage with these human rights issues. I understand that an updated code of practice for services, public functions and associations has recently been submitted for consideration by the UK government, as the last step before the document becomes subject to Parliamentary approval. In this respect, I note that Parliament has an important role as a guarantor of human rights, and in ensuring coherence and compliance.

The claim that the UK Supreme Court did not engage with human rights issues has been raised repeatedly since the judgement was handed down, most notably by barrister and former judicial assistant to the Supreme Court Crash Wigley. At the time of the judgment, I wrote a response to this claim noting

Wigley criticises the Supreme Court for not appearing to address the arguments of Amnesty International UK “in form or in substance anywhere in the judgment”. The arguments which Wigley criticises the Supreme Court for not considering were:

1. The positive obligation under Article 8, recognised in Goodwin v United Kingdom, to gender recognition.

2. The ECtHR has held that “gender identification” falls within the sphere protected by Article 8 and is tied to respect for dignity, human freedom, and protection of transgender people’s rights to personal development and physical and moral security.

3. The ECtHR has subsequently removed the requirement to undergo medical intervention prior to legal gender recognition.

4. The ECtHR has continued to emphasise the importance of the coherence of administrative and legal practices in the domestic system as an important factor in the Article 8 assessment.

From this Wigley argues that the Supreme Court “was presented with strong argument grounded in the case law of the ECtHR that a trans-exclusionary interpretation of sex would breach the Article 8 rights of trans people. In those circumstances, it should have considered whether a section 3(1) reading was necessary to avoid breaching the human rights of trans people. It did not do so.”

The central problem with this critique is that the Supreme Court does address these arguments and it does so in detail.

At para 65 the Court notes that in Goodwin, the ECtHR concluded (at para 90) that “the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable”. At para 63 the Court notes that the GRA was enacted as a response to Goodwin and the declaration of incompatibility made by the House of Lords in Bellinger v Bellinger, a case involving the validity of a marriage between a man and a trans woman at a time when same-sex marriage was not lawful. At para 66 the Supreme Court noted that the House of Lords in Bellinger held that it was not possible under our constitutional settlement to interpret “male” and “female” in s.11(c) Matrimonial Causes Act 1973 to refer to anything other than biological sex. Lord Nicholls noted at (para 37) that such an interpretation “would represent a major change in the law, having far reaching ramifications. It raises issues whose solution calls for extensive enquiry and the widest public consultation and discussion … the issues are altogether ill-suited for determination by courts and court procedures. They are pre-eminently a matter for Parliament”. It was therefore not possible to rely on s.3 of the Human Rights Act to “read down” the 1973 Act and so the House of Lords issued a declaration of incompatibility.

To remedy this breach, the Gender Recognition Act 2004 (GRA) was enacted. At para 68 the Supreme Court notes that in Grant v United Kingdom, the ECtHR concluded (at paras 41-43) that the violation of Article 8 identified in Goodwin was remedied when the GRA came into force. The GRA contains clear provisions limiting the effect of a GRC, both expressly in areas such as parenthood, succession, sport, and sex-specific criminal offences, and as part of the general exception in s.9(3) which limits the scope of a GRC where a contrary provision exists in any enactment or any subordinate legislation. It is therefore clear that the scope of the change in legal status provided in the GRA, and determined to be ECHR compliant in Grant, is not absolute.

At para 73 the Supreme Court expressly notes that “the GRA 2004 went further than the decision in Goodwin may strictly have required at that point to ensure compliance with article 8”. Indeed, they noted that the GRA anticipated the decision in Garçon and Nicot v France by declining to impose any requirements of medical treatment as conditions for gender recognition.

Taking all of the above together, it is simply inaccurate to claim, as Wigley does, that the Supreme Court did not consider Amnesty’s submissions “in form or in substance anywhere in the judgment”.

Whatever one may make of the analysis that the Supreme Court engaged in on the Article 8 rights of trans people, it is simply false to say that there was no engagement. The repeated assertion that the Court did not engage with these human rights issues serves only to misinform. It creates the impression that there are glaring omissions in the Court’s reasoning where there is none. The failure to engage with what the Court has actually said about Article 8, while claiming that the Court failed to engage with these issues, is difficult to justify, not least because it leads O’Flaherty to advance abstract claims about the content of Article 8 which fails to address the Supreme Court’s reasoning:

The European Court of Human Rights (the Court) has recognised that, the very essence of the European Convention on Human Rights (the Convention) being respect for human dignity and human freedom, it guarantees the right of trans people to personal development and to physical and moral security. Gender identity is covered as an aspect of private life under Article 8 of the Convention. This protection entails an obligation to provide for legal gender recognition, in order to avoid the unsatisfactory situation in which trans people live in an “intermediate zone [as] not quite one gender or the other” (Christine Goodwin v. the United Kingdom). The Court has further emphasised the importance of the impact on trans people of a discordance between their social reality and the law, with the coherence of the administrative and legal practices within the domestic system being an important factor in assessing whether there has been a violation of Article 8 (Hämäläinen v. Finland).

It should be ensured that steps taken towards implementing the Supreme Court judgment avoid a situation where a person’s legal gender recognition is voided of practical meaning, to the extent that it leaves trans people in an unacceptable “intermediate zone”.

The concept of an unacceptable intermediate zone arose directly in Goodwin. The Supreme Court’s analysis of the scope and reach of the Goodwin obligations, including the findings of the ECtHR that the UK met its obligations following Goodwin speak directly to how the Supreme Court understood the scope of this unacceptable ‘intermediate zone’. If O’Flaherty had engaged with the Court’s reasoning on the Article 8 issues raised in Goodwin and remedied with the enactment of the Gender Recognition Act 2004, we might have a better sense of how his understanding of this concept maps onto the jurisprudence of the ECtHR.

As it stands, O’Flaherty seems to envisage Article 8 as placing an obligation on member states to effectively adopt a position of self-identification for single-sex services by default:

Where possible, inconsistencies within the domestic system, particularly with regard to the interplay between key legal frameworks such as the Equality Act and the Gender Recognition Act, which could lead to legal uncertainty or to dissonance between the lived experiences of trans people and their treatment in law, should be avoided. It is also to be recalled that not all trans people wish to obtain legal gender recognition, and in reality simply live according to their gender identity. This does not in any way diminish their right to be treated with dignity, to be protected from discrimination, and to be able to participate in all areas of everyday life.

This approach could then be departed from in exceptional instances on a case-by-case basis:

In reality, tensions between the human rights of different groups in this context are likely to be exceptional in nature, and resolvable through nuanced, reasonable and balanced accommodations. This would also be in line with the approaches taken by various bodies of the Council of Europe (such as the Committee on the Prevention of Torture (CPT) or the Group of Experts on Violence Against Women (GREVIO)), which recognise the particular vulnerability of trans people, and which begin from the position of their inclusion within spaces according to their gender identity – with exceptions made on a case-by-case basis as necessary.

An unacceptable ‘intermediate zone’

In the aftermath of For Women Scotland, we have seen several commentators point to the reference in Goodwin to the unacceptable ‘intermediate zone’ as not quite one gender or the other. This is often presented as clear authority for the proposition that it would be an Article 8 violation to operate single-sex services and spaces on the basis of biological sex because doing so would place transgender people into this intermediate zone.

On this view, this means that it is a breach of Article 8 for there to be any circumstances where a transgender person is treated as male for some legal purposes and female for other legal purposes. Evidently, if that was correct, the ECtHR would not have concluded that the GRA remedied the Article 8 breach identified in Goodwin. Since the Court in Grant v United Kingdom did conclude that the GRA brought the UK into compliance with the Convention, we can conclude that the unsatisfactory nature of the ‘intermediate zone’ identified in Goodwin did not imply an obligation on Member States to introduce a system of gender recognition which never treated a transgender person in accordance with their biological sex. Rather, we can conclude that it is a clear breach of Article 8 to have no system of gender recognition at all, but that further questions about how precisely to implement such a system and how to balance gender recognition rights against the rights of others falls within the margin of appreciation and is a matter for Member States to decide.

Nowhere has it been suggested that Article 8 requires a member state to make provision for a complete change in legally recognised sex for all purposes with no exceptions. Indeed, the ECtHR noted in Parry v United Kingdom that the margin of appreciation may be wider in the context of gender recognition than in other areas:

In this context, the notion of ‘respect’ as understood in Article 8 is not clear cut, especially as far as the positive obligations inherent in that concept are concerned: having regard to the diversity of practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case and the margin of appreciation to be accorded to the authorities may be wider than that applied in other areas under the Convention.

This position has been recently reiterated in T.H. v. The Czech Republic, where the ECtHR noted that that there is a narrow margin of appreciation in the area of ‘the right to gender identity and personal development’, but also that:

where there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, or where the States are required to strike a balance between competing private and public interests or Convention rights, the margin of appreciation afforded to them in implementing their positive obligations under Article 8 will usually be wide.

This again supports the view that there is very little discretion for member states to decide whether to implement some framework of gender recognition. However, this also reinforces the fact that the domestic effect of gender recognition, particularly where it involves striking a balance between competing private and public interests or the rights of others, will be afforded a wider margin of appreciation. As Buxton LJ noted in the Court of Appeal decision in A v. Chief Constable of West Yorkshire Police:

it is important to be clear that Goodwin decides that it will be a breach of article 8, in cases “where there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re- assignment”, to refuse to recognise that re-assigned gender … Accordingly, in any case to which [the HRA] applies, it will in future be necessary to consider whether a failure or refusal to treat a post-operative transsexual as being of the reassigned gender involves a breach of Article 8. Since the application of article 8 is case-specific, and does not confer absolute rights, the court will have to consider in every case whether the subject’s interest in achieving respect and recognition for her gender re-assignment is outweighed by countervailing considerations of the public interest.

While it is open to domestic courts to develop the law in relation to Convention rights beyond the limits of the Strasburg case law, the rule within domestic law is that this cannot go further than what courts are ‘fully confident’ the ECtHR would go (R (AB) v. Secretary of State for Justice [2021] UKSC 28, [59]; Elan-Cane at [63]). T.H. concerned the requirement to undergo medical intervention which had a high likelihood of resulting of sterility as a condition for gender recognition. There is no longer a margin of appreciation accorded to member states to set such a condition. In other areas, however, domestic courts must be confident that the ECtHR would find a violation before the domestic law can be developed. For example, there has been no case law at the ECtHR level arguing that the right to gender recognition protected under Article 8 places a positive obligation on member states to confer a legal entitlement to use single-sex spaces of one’s choosing. To develop domestic law in this way, the following must be established:

1. A court or tribunal must be satisfied that the Article 8 right to gender recognition includes a right to use single-sex spaces on a self-identification or certificated sex basis.

2. A court or tribunal must then be satisfied that it would be a disproportionate interference with this right to operate single-sex spaces on a biological sex basis.

3. Given there is no case law supporting 1 and 2, a court or tribunal must then be ‘fully confident’ that the ECtHR would develop the case law on Art. 8 to include both 1 and 2.

4. The Tribunal must then consider the domestic legislation in question (in this case the Equality Act 2010) and identify the specific provisions which need to be read down.

5. Finally, a court or tribunal must then be satisfied that doing so would not conflict with a ‘fundamental feature’ of the legislation in question.

Given that an entitlement to access single-sex spaces will necessarily engage the rights of others, it is highly likely to fall within the margin of appreciation for member states. If this is right, it is not open to domestic courts to develop the domestic Article 8 jurisprudence to go beyond that which has been recognised by the European Court.

The Political Fallout

The intervention from O’Flattery is highly political. That is part of the mandate of Commissioners, which includes identifying “possible shortcomings in the law and practice of member states concerning the compliance with human rights”. Nevertheless, given the current climate of ECHR scepticism across Europe, this kind of intervention may be imprudent. Given the state of the law set out above, coupled with the highly contested nature of the transgender issue throughout Europe, it is highly unlikely that the European Court of Human Rights will narrow the margin of appreciation should a case come before it.

This means that the only likely outcome of this intervention is the provision of ammunition to both sides of an increasingly fractious debate. Those critical of the Supreme Court judgment will use this letter to attack the Equality and Human Rights Commission’s new guidance on single-sex services. The difficulty here is that most opposition to the new guidance is in reality opposition to the law following FWS, something neither the EHRC nor the government can change without Parliamentary intervention.

More concerning perhaps is the ammunition this letter will provide for those sceptical of the UK’s continuing membership of the ECHR itself. In a report in the Times today, the home secretary Shabana Mahmood strongly criticised this intervention as doing little more than undermine support for the ECHR:

A senior government source said Mahmood “fundamentally disagrees with the assessment” made by O’Flaherty and warned “it doesn’t help sustain public confidence in the European Convention when the council is seen to intervene in domestic politics and national security” in this way. The source warned it would play into the hands of Reform UK and the Conservatives, which have both advocated leaving the ECHR.

A second government figure said it was “supremely unhelpful” to those attempting to make the case that the ECHR could be reformed while remaining a signatory to the convention.

…

Mahmood’s allies said she considered the Supreme Court’s judgment to be “beyond reproach”.

Those who wish to see the UK remain within the ECHR are likely to see this intervention from O’Flaherty as ill-timed and ill-judged. Speaking as an equality and human rights lawyer, there is a recurring issue in this space where commentators flee to the lofty heights of abstraction when seeking to advance highly aspirational interpretations of human rights obligations. It is always open to the astute lawyer to focus on values such as dignity or concepts such as an intermediate zone to advance a position which is not supported by legal doctrine but which has the right vibe. This is particularly frustrating when these appeals to abstraction are accompanied by admonishment of the senior judiciary for not engaging sufficiently with human rights issues when they have done exactly that.

Those sceptical of human rights law often critique it for the potential for highly political interventions into areas of extreme political sensitivity. O’Flaherty’s intervention is unlikely to have assuaged these concerns.