A leading trans campaign group has requested an investigation into the Equality and Human Rights Commission (EHRC), claiming its conduct in the wake of the Supreme Court ruling on gender has been unlawful, The Independent can reveal.
It comes after the Supreme Court ruled that trans women are not legally women under the Equality Act.
TransLucent said they have submitted a formal complaint to the Global Alliance of National Human Rights Institutions (GANHRI) – the worldwide membership-based network of national human rights institutions (NHRIs)– claiming that the UK’s equalities watchdog is failing to adhere to the Paris Principles.
The Paris Principles set out the minimum standards that NHRIs must meet in order to be considered credible and to operate effectively. The key pillars of the Paris Principles are pluralism, independence and effectiveness.
TransLucent alleges that public statements made by EHRC commissioners, including chair Kishwer Falkner, demonstrate the body has already formed a “settled view” on the implications of last month’s Supreme Court ruling, pre-empting the end of the consultation on the ruling.
Baroness Falkner previously said the ruling was “a victory for common sense”, adding: “but only if you recognise that trans people exist”.
She has also said: “If a male is allowed to use a women-only service, it isn’t any longer a single-sex space.”
But TransLucent said positions such as this render the consultation “unfair and unlawful”, arguing that public authority consultations “require an open mind at a formative stage”.
They have also argued this breaches the principles of independence and pluralism by “undermining the ability of key stakeholders like TransLucent to provide meaningful views”.
“Given the resulting fear and uncertainty within the transgender community, TransLucent urges GANHRI to investigate and ensure the EHRC conducts its consultation with a genuinely open mind,” the organisation said.
However, the EHRC has insisted its response to the Supreme Court ruling has been “firmly grounded in the law”.
The body last month launched a consultation on the draft updates to its code of practice following the Supreme Court’s ruling that the term “sex” in the Equality Act refers to biological sex.
The consultation is seeking feedback on how the ruling, which clarified that a gender recognition certificate does not change a person’s legal sex for Equality Act purposes, impacts the guidance provided in the code.
But Steph Richards, the organisation’s director, told The Independent that the trans community has had “no confidence in the EHRC for several years”.
“Without a single transgender EHRC commissioner, MP or trans peer, we are reliant on allies, international bodies and the courts to make our case for fairness and equality,” she said.
While gender critical campaigners have hailed the ruling as a victory for biological women, there are concerns it will put trans people at risk and exclude them from public life.
Interim guidance published by the equalities watchdog in the wake of the ruling says that trans women “should not be permitted to use the women’s facilities” in workplaces or public-facing services like shops and hospitals.
But last month, The Independent revealed that lawyers acting on behalf of TransLucent sent a letter to the watchdog warning that the guidance “incorrectly states the legal position” of the court ruling.
The letter criticises the body, saying it failed to consult with trans people before publishing its interim guidance, ahead of an ongoing consultation on the issue.
Speaking at the Women and Equalities Committee in the Commons earlier this month, Baroness Falkner defended the EHRC’s interim guidance, saying the update was “necessarily very brief”.
“We had high demand for some kind of explanation, and it was only the headlines that we were highlighting of the Supreme Court judgement,” she said.
“When you have a synopsis of something, it can never spell out all the nuance … I would tell people to judge us by what the final consultation document is, because that will be the more definitive word on what we have found and will be the result of a conversation with, in fact, groups like TransActual.
“We are listening to them. We have scheduled meetings with those groups, and we are listening to what they are telling us about their experience on the ground. We will, of course, take that in mind.”
A spokesperson for the EHRC said: “At the EHRC, we are wholeheartedly committed to protecting and upholding equality and human rights. We remain fully compliant with the Paris Principles, and we were pleased to have this confirmed by the SCA last year when we retained our ‘A status’ as a national human rights institution.
“Our response to the Supreme Court’s judgment has been, and will continue to be, firmly grounded in the law. All who rely on us are reassured that every explanation of equality law from the EHRC will be accurate and authoritative. As Britain’s impartial and expert equality regulator, we take great pride in our independence from government and from civil society organisations.
“In May, we launched a consultation on the draft detailed updates made to our statutory code of practice for service providers, public bodies and associations following the Supreme Court judgment. It is important that our code is both an accurate interpretation of the law and clear to those who use it.
“We encouraged all affected stakeholders to share their views on the clarity of these updates by responding to the consultation, and we were pleased to meet with many stakeholders to answer their questions.
“The consultation deadline has now passed with a total of 25825 completed responses received. We will carefully consider responses and amend the code of practice where necessary.”
