Is the EHRC interim update lawful?

A response to the Good Law Project: Part 1

Shortly after the Supreme Court handed down its decision in For Women Scotland v The Scottish Ministers, the Equality and Human Rights Commission published an interim update on the practical implications of the judgment. Soon after that, the Good Law Project launched a judicial review challenging the lawfulness of this update, characterising it as guidance which has incorrectly stated the law and consequently encouraged others to act unlawfully.

There are several detailed grounds of review advanced by the Good Law Project, the full statement of which is available here. In this post, I will set out the core content of the interim update and the central points of challenge to the issue of whether the EHRC has misinterpreted the law following For Women Scotland. While this post will explore the Supreme Court decision in some depth, it will be focus on the judgment as it relates to the interim update and the judicial review that has been brought by the GLP. For a fully comprehensive analysis of the judgment, I highly recommend this paper by Ben Cooper KC.

The Interim Update

While the update is short, the key part for our purposes relates to the provision of single-sex services:

The Supreme Court ruled that in the Equality Act 2010 (the Act), ‘sex’ means biological sex.

This means that, under the Act:

• A ‘woman’ is a biological woman or girl (a person born female)

• A ‘man’ is a biological man or boy (a person born male)

If somebody identifies as trans, they do not change sex for the purposes of the Act, even if they have a Gender Recognition Certificate (GRC).

• A trans woman is a biological man

• A trans man is a biological woman

This judgment has implications for many organisations, including:

• workplaces

• services that are open to the public, such as hospitals, shops, restaurants, leisure facilities, refuges and counselling services

• sporting bodies

• schools

• associations (groups or clubs of more than 25 people which have rules of membership)

In relation to workplaces, it is compulsory to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where these facilities are needed.

It is not compulsory for services that are open to the public to be provided on a single-sex basis or to have single-sex facilities such as toilets. These can be single-sex if it is a proportionate means of achieving a legitimate aim and they meet other conditions in the Act. However, it could be indirect sex discrimination against women if the only provision is mixed-sex.

In workplaces and services that are open to the public where separate single-sex facilities are lawfully provided:

• trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex

• in some circumstances the law also allows trans women (biological men) not to be permitted to use the men’s facilities, and trans men (biological woman) not to be permitted to use the women’s facilities

• however where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use

• where possible, mixed-sex toilet, washing or changing facilities in addition to sufficient single-sex facilities should be provided

• where toilet, washing or changing facilities are in lockable rooms (not cubicles) which are intended for the use of one person at a time, they can be used by either women or men

It should be noted that this version of the update is no longer live. The current version references the Workplace (Health, Safety and Welfare) Regulations 1992. The substance of the update is unchanged. However, the fact that GLP has not sought to review the updated version means that there is a chance this case is struck out as academic on the grounds that it is seeking a remedy that is of no practical effect: the quashing of an update which is no longer published.

The GLP Grounds of Challenge

There are three grounds of claim:

1. The interim update misstates the law and encourages unlawful conduct.

2. Publishing the update breached the EHRC’s statutory duties.

3. Alternatively, if the update correctly states the law, the Equality Act, the Gender Recognition Act and the Workplace (Health, Safety and Welfare) Regulations are all “incompatible with trans people’s rights under article 8 and/or 14 of the European Convention on Human Rights” and the Good Law Project seeks a declaration of incompatibility to that effect [3].

This post will focus on grounds 1 and 3: whether the interim update misstates the law and, if it does not, whether the current law is incompatible with Articles 8 and 14 of the ECHR.

Before we get to these ground of challenge, however, it is important to set out the background legal context into which the update was introduced and to compare this to how it has been characterised by the GLP.

Background

A natural starting point for setting out the context of the FWS decision would be the default position in relation to sex in our law. This has been conclusively determined to be based on biological sex in several cases dating back to at least 1970 (Corbett v Corbett; Bellinger v Bellinger; A v Chief Constable of West Yorkshire Police). There are specific rules relating to those with DSD’s (sometimes referred to as intersex conditions) which are different from the rules relating to those with transgender identities (Bellinger v Bellinger at [5]-[7]).

The take away from this case law is that the default position in our law is that an individuals sex is determined by reference to their biological sex, as observed at birth. Having a transgender identity does not change that. Without a Gender Recognition Certificate, a trans person’s legally recognised sex for all purposes is their biological sex. This was affirmed by the Supreme Court in FWS at [26].

The two areas where this default of biological sex as observed at birth will change is where (1) it can be shown that a DSD condition renders the original observation at birth erroneous; or (2) where the Gender Recognition Act 2004 applies.

The GLP does not mention this default legal position in its grounds of claim. Instead, it goes straight into an analysis of the human rights of trans people. But this default matters for Ground 1. If the GLP does not accept this default position, it may find it difficult to understand why it is that the EHRC has provided the update that it did.

The human rights of trans people

The GLP begin by noting that trans people have a right “to personal development and to physical and moral security in the full sense enjoyed by others in society” (TH v The Czech Republic at paras 48-53). It similarly notes that Goodwin v United Kingdom concludes by stressing 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”. This is a commonly quoted line, usually presented to support the contention that full gender recognition is intended to have minimal exceptions, if any.

One problem with that framing, however, is the failure to engage with the qualified nature of the Article 8 right and the case law at both a domestic and international addressing that in the context of the right to gender recognition.

In Goodwin, the European Court of Human Rights was evidently aware that some issues might arise as a result of its ruling in this case and was careful to emphasise that they could be addressed from within the U.K.’s margin of appreciation:

“The Court does not underestimate the difficulties posed or the important repercussions which any major change in the system will inevitably have, not only in the field of birth registration, but also in the areas of access to records, family law, affiliation, inheritance, criminal justice, employment, social security and insurance. However, as is made clear by the report of the Interdepartmental Working Group, these problems are far from insuperable, to the extent that the Working Group felt able to propose as one of the options full legal recognition of the new gender, subject to certain criteria and procedures. As Lord Justice Thorpe observed in the Bellinger case, any “spectral difficulties”, particularly in the field of family law, are both manageable and acceptable if confined to the case of fully achieved and post-operative transsexuals. Nor is the Court convinced by arguments that allowing the applicant to fall under the rules applicable to women, which would also change the date of eligibility for her state pension, would cause any injustice to others in the national insurance and state pension systems as alleged by the Government” [91].

While the Court was cognisant that there may be some detriment to the public interest here, the focus was on the legal relationship between an individual and the State, including their status for the purposes of state pensions, national insurance and social security schemes. Where consequences were envisaged to flow from this, they were primarily in the realm of family law, inheritance and insurance. The ECtHR did not consider the impact that gender recognition would have on the rights of third parties because it did not consider any concrete or substantial hardship would flow necessarily from the mere fact of a change in legal status.

“No concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost” [91].

We can conclude from this that, where legal gender recognition would not lead to substantial hardship or detriment to the public interest it will therefore be a breach of Article 8 not to recognise a transgender person’s gender reassignment. However, where hardship or detriment may arise, either to the public interest or to the rights of others, the right to gender recognition may be limited.