The EHRC’s transphobic misreading of the Supreme Court judgment
Labour MP Tony Vaughan has written to Equalities and Human Rights Commission chair Baroness Falkner, calling on the EHRC to withdraw its appalling “interim update on the practical implications of the UK Supreme Court judgment”. His letter should be circulated more widely, I think. Vaughan is a KC and former member of the EHRC’s own panel of counsel, who unlike some commentators on this issue actually understands equality law.
Many people who have deplored the EHRC’s intervention have nevertheless accepted the organisation’s claim that its demand for a systematic attack on trans rights is authorised by the recent Supreme Court judgment. But Vaughan rejects that claim. The EHRC’s statement that “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”, he argues, “does not, in my view, come from the Supreme Court ruling”.
In support of this view he cites comments made by former Supreme Court judge Lord Sumption, who said that the court’s ruling had been misunderstood and in fact imposed no obligation on organisations to ban trans people from single-sex services and restrict access on the basis of “biological sex”.
Vaughan points out that the EHRC’s call for a blanket ban on transgender people accessing single-sex services that match their gender is also contrary to the Equality Act 2010, which permits exclusion only in certain limited circumstances (where it is “a proportionate means of achieving a legitimate aim”). Any service provider who attempted to enforce the EHRC’s guidance and ban transgender people from accessing a single-sex service, on the basis that it did not align with their so-called biological sex, could be liable to claims for unlawful discrimination.
Vaughan goes on to show the practical consequences of implementing the EHRC’s interim guidance on the use of toilet facilities and the danger in which it puts transgender people, leaving them vulnerable to “harassment and violence” and “hostile and aggressive behaviour”. He adds: “None of this is the necessary consequence of the Supreme Court’s ruling”.
He also accuses the EHRC of failing to consult with trans people and their organisations, pointing out that this is in breach of the EHRC’s Public Sector Equality Duty, which requires engagement with affected groups when developing policies.
On those grounds Vaughan urges the EHRC to “withdraw the interim guidance immediately and undertake meaningful consultation with trans communities, legal experts, and other relevant experts and stakeholders, before issuing further guidance”. Needless to say, the EHRC will ignore this. Since Falkner’s appointment as chair in 2020, as part of the Tories’ politicisation of the EHRC, the organisation has pursued a relentlessly hostile approach towards transgender rights.
It’s worth noting, though, that the EHRC’s “interim update” is not statutory guidance and has no force in law. The EHRC says it will present its revised code of practice for government approval by the end of June. If approved, this woul then become statutory guidance. In the meantime the EHRC will be consulting affected stakeholders, but not on the legal interpretation of the Supreme Court judgment. (“The Supreme Court made the legal position clear, so we will not be seeking views on those legal aspects.”)
The pushback against the EHRC, I’d suggest, should be along the lines of Tony Vaughan’s excellent letter. Rather than attacking the admittedly awful judgment by the Supreme Court, the emphasis should be on exposing the wilful misinterpretation of the judgment by the EHRC, in service of a transphobic agenda that seeks to drive a coach and horses through the Equality Act, and on challenging the EHRC’s refusal to give a hearing to legal experts who might dispute that misinterpretation.
Update: Falkner has responded to Tony Vaughan’s letter. Predictably, she ignores his request to withdraw the EHRC’s misleading and arguably unlawful “interim guidance”. However, she does make this concession: “We will record the analysis of the Supreme Court judgment you have provided as part of our consultation and encourage you to respond formally to the consultation.” So the EHRC would appear to be backtracking on its earlier statement that its consultation would not be taking submissions on the legal aspects of the case, on the fraudulent grounds that the EHRC’s own transphobic interpretation of the judgment was the only correct one. It’s doubtful whether this will change the outcome of the so-called consultation, though. Falkner and her allies at the EHRC have already made their minds up.
