EHRC updates guidance on how to apply supreme court ruling on gender
TL;DR
The EHRC has revised its guidance on implementing the Supreme Court ruling regarding gender, following government feedback. The updated code aims to clarify how organizations should respond to the ruling that defines sex in the Equality Act as biological sex.
Key points
- EHRC updated guidance on Supreme Court ruling on gender
- Changes made after government feedback and legal advice
- Original code raised concerns about excluding transgender people
- Code outlines organizational responses to the ruling
- Ruling defines sex in the Equality Act as biological sex
The equalities watchdog has updated its guidance on how to implement the supreme court ruling on gender after the government requested changes to the original proposals submitted last year.
In a statement, the Equality and Human Rights Commission (EHRC) said that after “feedback” from the government, as well as consultation responses and extra legal advice, it had made changes to what is officially known as the code of practice.
It follows concern from a number of MPs and groups representing transgender people that the original code, sent to ministers in September under the EHRC’s then-chair, Kishwer Falkner, created a legal minefield for organisations implementing it, and risked effectively excluding transgender people from much of the public realm.
The code sets out how businesses and other organisations should respond in practical terms to the supreme court ruling that sex in the Equality Act refers only to biological sex.
Interim advice from the EHRC under Falkner, which was subsequently withdrawn, said the ruling meant transgender people should not be allowed to use toilets meant for the gender they live as, and that in some cases they could not use toilets consistent with their birth sex.
In January, the Guardian reported that under its new chair, Mary-Ann Stephenson, the EHRC was looking at ways to adapt the formal code to lessen its impact on businesses and to ensure it tried to balance single-sex spaces with the lives of transgender people.
In a statement on Tuesday, Stephenson said ministers had “recently provided us with a narrow set of comments on the draft code of practice we submitted in September”.
She went on: “Having considered this feedback alongside consultation responses and further legal analysis, we have made adjustments where they help the code provide legally accurate, practical guidance that is useful to duty bearers.
“These aim to strengthen duty bearers’ understanding of the law and how it applies across a range of the scenarios they encounter day-to-day, so that all service users are treated with dignity and respect, in line with the Equality Act.”
The updated code is now with Bridget Phillipson, who as minister for equalities must approve it before it is put before parliament.
In a written statement today, Phillipson thanked the EHRC for its updates, adding: “This government has always supported the protection of single-sex spaces based on biological sex”.
She confirmed that the government was unable to make further announcements because it was within the pre-election period for the Scottish and Welsh parliaments, but Maya Forstater, CEO of sex-based rights campaigners Sex Matters, said this was “not a good excuse”.
Forstater raised concerns about “negotiations and horse-trading” between the government and the EHRC.
“It’s extraordinary that a year after the supreme court judgment, and seven months after the independent regulator first submitted its code of practice, the government has found another excuse for delaying the guidance,” she said.
“The past year’s delay has caused serious harm to countless women. The statement that the government has “always supported the protection of single-sex spaces based on biological sex” is a slap in the face to these women and girls who have faced harassment and hounding from jobs and services for saying the same thing.”
Alex Parmar-Yee, director of the Trans+ Solidarity Alliance group, said: “We’re glad that the government has heard how cruel and unworkable the EHRC’s original proposals were. A national bathroom ban under the guise of equality law is not in line with Labour’s values, and we hope any new guidance scraps that idea for good.
“For trans people and inclusive organisations, the last year has been horrific – now we have to find out whether this government has taken its responsibilities seriously and fixed this mess or not.”
The equalities charity Stonewall welcomed the “constructive working” between the government and EHRC. “Following a year of complex judgments in the courts and the uncertainty this has created, it is essential that organisations can look to the code for practical, workable guidance and feel confident about their legal obligations,” said a spokesperson.
Q&A
What changes did the EHRC make to its guidance on the Supreme Court ruling?
The EHRC updated its guidance to clarify how organizations should implement the Supreme Court ruling on gender, addressing concerns raised by the government and stakeholders.
What was the original concern regarding the EHRC's guidance on gender?
The original guidance was criticized for potentially excluding transgender people from public spaces and creating legal challenges for organizations.
What does the Supreme Court ruling state about sex in the Equality Act?
The Supreme Court ruling specifies that sex in the Equality Act refers only to biological sex.
Who was the EHRC chair when the original guidance was submitted?
The original guidance was submitted under the EHRC's then-chair, Kishwer Falkner.
