The equality regulator has defended its interim update on the practical implications of the Supreme Court’s ruling on the definition of sex, saying it was a matter of balancing ‘clarity and speed’.
Speaking to the Women and Equalities Committee of MPs this week, Baroness Kishwar Falkner, chairwoman of the Equality and Human Rights Commission, emphasised that the update was not guidance, as some of the MPs questioning her and EHRC chief executive John Kirkpatrick had referred to it, but an update.
Last month, the EHRC launched a consultation on updates to its code of practice in the light of the Supreme Court ruling that sex in the Equality Act 2010 meant biological sex; that a woman was a biological woman, and a man was a biological man.
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In the WEC’s annual meeting with the EHRC’s leadership, Labour MP David Burton-Sampson asked whether the EHRC has been “overreaching” in its interpretation of the Supreme Court judgment, as some transgender lobby groups had accused.
“Our interim update was necessarily very brief,” replied Falkner. “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 added: “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.”
She had explained that there was a banner on the EHRC webpage explaining that duty-bearers should take their own legal advice. Burton-Simpson asked: “If you were advising people to take legal advice, why did you issue an interim update, which created what seems to be a greater amount of confusion?”
Falkner responded by saying the EHRC has powers under the Equality Act to advise and inform people about the meaning of enactments in the Act. “It is our duty to do so, and we decided that it would be the responsible thing to do,” she added.
“In fact, we would not actually have been doing our job if we had waited seven months until the statutory code of practice, sometime in the late autumn, comes out and Parliament decides what to do. All of you in this room then would have been rightly challenging me as to what we were doing in all this time.”
Using specific toilets
Kirith Entwistle, Labour MP, asked: “How feasible is it to stop someone using a specific toilet?”
Kirkpatrick replied: “What the law obliges service providers to do, for example, and indeed in some cases employers, is to provide facilities of the right kind in various ways. The rules vary a little in the workplace; they are governed by one set of laws and service providers are guided by others.
“What makes them compliant with the law is that they have compliant policies on how those facilities ought to be used and that those compliant policies achieve the objectives they are trying to achieve, which includes making sure that there are facilities that secure the safety and dignity of women.
“Those policies are the things that really matter. The way they enforce those policies will vary a lot locally and… a lot of that ultimately has to be based – in the overwhelming majority of cases, one has to expect that it will work on this basis – on trust, openness, and honesty.
“In some situations, it will be through local agreement where you find ways to make sure that people have access to the facilities to which they are entitled, and that those facilities perform the functions that they need to perform and are compliant with the law.”
Falkner added: “The policy-making function of a service provider is to make that decision as to whether to have a single or separate sex facility or not, but proportionality lies at the heart of their decision-making if they wish to be found to have acted lawfully. So a proportionate means of achieving a legitimate aim is what they have to demonstrate, and that is where you will find that they are obliged not to disadvantage any category of people by the way.
“Of course, there are service providers who may decide that they are not going to provide single-sex spaces, and they may find that they are attracting claims of indirect discrimination by not catering to, for example, women’s privacy or dignity. So it cuts both ways. They have to be very careful to balance the interests of different groups.”
Trans rights
Catherine Fookes, Labour MP, challenged Falkner on her having said that trans people had not lost rights. She said: “But they have: they have lost the right to use the toilet of their choice. I have heard from people in my constituency in Monmouthshire that trans people who are not ‘out’ have lost their right.
“For example, trans women who have been trans women for 30 years and have not told their work they are a trans woman – they do not want to tell their work. In what way have they not lost a right? How are they going to stay in that business that they have been working in?”
Falkner replied: “We have a slight danger here of shooting the messenger. So the judgment was one delivered by the Supreme Court, and I suggest you call the five justices in front of you and challenge them on why they arrived at the decisions they have arrived at.”
She added: “If you want to go back to the Sex Discrimination Act 1975, it is the Equality Act building on that – [it] has always had exemptions for separate and single-sex spaces. They were always there.
“Because we realised that there was a balance, perhaps a conflict of rights in some workplaces and other situations… we published updated guidance as long ago as April 2022 to explain that separate and single-sex exemptions had always been part of the law, and that they limited people to using only those facilities of their biology.
“We reiterated that in our consultation last year on the full code of practice, which we already consulted on for 12 weeks between October [2024] and January [2025], and we did not get any particular reaction to that.”
“In terms of the law, what we are doing is helping to provide examples of how people should navigate it. We think that trans people should never not have facilities that they can use.”
Ambiguity in the Supreme Court judgment
In the EHRC interim update, published nine days after the Supreme Court judgment in April, it states that in workplaces and services open to the public:
“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.” However, it goes on to say: “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) [sic] not to be permitted to use the women’s facilities.”
Fookes asked what this means in practice.
Falkner replied: “This is one of the more ambiguous implications of the Supreme Court judgment. It is not intended to be a comprehensive analysis. The more comprehensive guidance on what to do in those circumstances will follow in the code. We appreciate it is slightly ambiguous, so we are looking at that very carefully, and we expect to have dealt with that when we publish our finalised code.”
Guidance or not?
Throughout the meeting, there remained much confusion about what the EHRC interim update actually was. Was it guidance or not?
Christine Jardine, the Liberal Democrat spokesperson on women and equalities, said: “What I wonder is: how does this interim update comply with the requirement of Goodwin vs United Kingdom in 2002 that trans people should not be left in gender limbo? It seems to so many of us that what the interim judgment says is, ‘Well, you can’t be one thing, and you can’t be another.’”
Falkner replied: “First, I am slightly confused by what you mean by an interim judgment, as the judgment of the Supreme Court was a final judgment.
Jardine said: “Sorry, I meant your interim guidance. I beg your pardon.”
Falkner said: “That is not in the interim guidance either. We have published 11 pieces of guidance in the last year, and this is not guidance. When we publish guidance, we call it guidance.”
Jardine: “My point is that the interim guidance does not guide: it lacks clarity and leaves people in complete limbo, not knowing what the Act means for them, and it is causing a great deal of anxiety. So, how do you think that we can progress until we have addressed that, removed the anxiety and created some clarity? Does that bring us back to Parliament, and perhaps new legislation?”
Falkner explained the timeline of events. “We had to strike a balance between accuracy and clarity on the one hand… and speed,” she said, “because we recognise more than anyone else that certain groups may feel particularly anxious about the meaning of these things as they are not always straightforward.”
Misleading advice
Rosie Duffield, the independent MP for Canterbury, said that some sectors are still taking advice from organisations such as Stonewall. “Would you prefer some public organisations and charities to take more guidance and advice from you rather than organisations that could be seen to be misleading them?”
Kirkpatrick replied that the EHRC was keen to place its best interpretation of the law as it now stands in the public domain so that people can use it.
“The draft that is out for consultation as we speak is just that: it is our best interpretation of what the law now is, as we understand it. To the extent that it is not clear enough to people, or does not provide the right examples or its examples are not helpful, then the responses to the consultation we are most keen to have will be those from people who say, ‘It could be clearer if it covered this issue,’ or ‘It could be clearer if it said that,’ and so on and so forth.
“That is the purpose of consultation, and we are really keen to get responses of that kind because that will make it more useful and clearer for everybody.
“To go to the heart of your question, I would hope so, yes. The obligation of all duty holders is to obey the law in what they do. What we have tried to do is provide them with some guidance on what that actually means in some practical circumstances that they encounter.”
He added: “I would like to think that they might follow some advice in our guidance now out for consultation as the best that is currently available. I would be very disappointed if people were still, in light of all that, using and relying on old guidance from us that is no longer valid. We would much rather they used what we have and, at the same time, commented on it and told us if it is not as clear as they would like it to be.”
Yesterday, in a letter seen by the Guardian, organisations including Refuge, the UK’s largest charity for women affected by domestic abuse, and the mental health charity Mind, urged the EHRC to extend the consultation to 12 weeks, as it risked creating “rushed” guidance.
Last week, Liberty’s attempt to launch a judicial review to extend the consultation to 12 weeks was refused by a High Court judge, although the human rights charity has said it is appealing the decision.
The EHRC consultation closes on 30 June.
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