Liberty has lost its attempt to legally challenge the EHRC’s consultation on its code of practice following April’s Supreme Court decision on the definition of ‘sex’ in the Equality Act.
The charity sought to launch a judicial review, arguing that the Equality and Human Rights Commission had breached its statutory duties by not giving individuals and businesses a lawful amount of time to respond to the consultation.
On 16 April, the Supreme Court made the legal position on the definition of “sex” in the Equality Act 2010 clear: a woman is a biological woman, and a man is a biological man.
EHRC consultation
Liberty to challenge EHRC consultation in High Court
The EHRC launched a six-week consultation on 20 May on proposed updates to the code, in light of the judgment. The consultation closes on 30 June, after the EHRC had previously proposed a period of just two weeks.
Liberty said that any consultation period on the updated code should be a minimum of 12 weeks. The EHRC’s previous consultation on the code in the autumn was 13 weeks.
However, in a High Court decision on Friday 6 June, Mr Justice Swift rejected Liberty’s argument. He said: “There is no 12-week rule. The requirements of fairness are measured in specifics and context is important.”
“I am not satisfied that it is arguable that the six-week consultation period that the EHRC has chosen to use is unfair,” he added.
James Goudie KC, for the EHRC, had told the hearing there was “no magic” in a 12-week consultation period. In written submissions, he added: “Guidance consistent with the Supreme Court’s decision has become urgently needed. The law as declared by the Supreme Court is not to come in at some future point. It applies now, and has been applying for some time.”
I am not satisfied that it is arguable that the six-week consultation period that the EHRC has chosen to use is unfair” – Mr Justice Swift
Sarah Hannett KC, for Liberty, said in written submissions that the Supreme Court decision had “altered the landscape radically and suddenly”.
She told the court: “There is a desire amongst the bigger trans organisations to assist the smaller trans organisations in responding… That is something that is going to take some time.”
After the ruling, Baroness Kishwer Falkner, EHRC chairwoman, said: “We are pleased with the court’s decision to refuse permission for this judicial review. We believe our approach has been fair and appropriate throughout. The EHRC has a clear statutory duty to provide authoritative guidance on the law following the Supreme Court’s decision in the For Women Scotland case, and we’re grateful that the judge has allowed us to proceed with doing so promptly.
“Our six-week consultation period represents a balance between gathering comprehensive stakeholder input and addressing the urgent need for clarity. We’re particularly encouraged by the thousands of consultation responses already received and look forward to further meaningful engagement through the rest of the process.
“The current climate of legal uncertainty and widespread misinformation serves nobody – particularly those with protected characteristics who rightly expect clarity about their rights. A swift resolution to this uncertainty will benefit everyone, including trans people.
She added that there’s still time to contribute to the consultation and encouraged those who haven’t already responded to share their views before the 30 June deadline.
“After this, we will thoroughly analyse all submissions to ensure the code accurately reflects the law as clarified by the Supreme Court,” she concluded.
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