Liberty has issued legal action against the UK equalities watchdog over the length of the consultation to update its code of practice following April’s Supreme Court ruling on the definition of ‘sex’.
The charity argues that the Equality and Human Rights Commission (EHRC) has breached its statutory duties by “trying to speed through sweeping changes” to its code of practice for services, public functions and associations, and 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
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 equalities regulator had previously proposed a period of 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.
Liberty believes that the consultation has “life-changing implications” for how transgender people – and people perceived as not conforming to gender norms – access public services, education and social activities. It also has a wider impact on businesses and employers.
The human rights charity said that due to the significant impact the guidance will have on trans individuals and organisations who require more support to respond, the current consultation period is “so unfair as to be unlawful”.
Many of the proposed amendments to the code require individuals and organisations to seek external legal support, which Liberty said the current schedule for response does not suitably allow for.
Akiko Hart, director of Liberty, said: “As a public body, the EHRC has a legal duty to conduct a fair and lawful consultation process that allows everyone affected by a decision enough time to respond to it. Instead, they have tried to speed through sweeping changes to their guidance, initially giving just two weeks to people to respond to nearly 60 pages of amendments when printed out.
“Anything less than a minimum of 12 weeks on this issue is wholly insufficient and simply does not comply with the law.”
She added: “It is a fundamental part of our democracy that we are all given a fair opportunity to make our voices heard about any decision that impacts us. We urge the EHRC to extend the consultation period to at least 12 weeks, just as its previous consultation on this Code of Practice was. There is no good reason why it should not be.”
Liberty claimed that UK courts have “often” ruled that consultation periods that impact vulnerable groups are unlawful when shorter than 12 weeks.
It cited a recent High Court case concerning disability benefits against the Department for Work and Pensions, where the judge ruled an eight-week consultation unlawful, saying that giving vulnerable claimants “adequate time to consider, take advice upon and respond to the proposals was essential”.
Liberty also asserts that the EHRC is in breach of the public sector equality duty (PSED), which enforces public bodies to have due regard to the need to eliminate harassment and discrimination of people with protected characteristics, such as gender reassignment, when running consultations.
An EHRC spokesperson said: “We are unable to comment on any legal action at this stage.”
A High Court judge will now decide how quickly the case should be dealt with and whether it will go ahead to a hearing.
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