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On Friday 13th February the High Court published its judgment of the case between the Good Law Project (GLP) and the Equality and Human Rights Commission (EHRC).
You can find the full judgment here: Read the full High Court judgment
You can also read lots of information about the case directly from GLP: GLP’s “Stop the UK’s attack on trans people” page
This case was about an “interim update” – that is, some guidance – that the EHRC published on their website last April. That was a few days after the UK Supreme Court (SC) ruled that sex means “biological sex” in the Equality Act 2010. The EHRC’s interim update strongly suggested that all services and facilities provided separately to women and men, across England, Scotland and Wales, must now be operated on a “biological sex” basis. That is, trans women must be excluded from all women-only spaces, and trans men excluded from all men-only spaces.
The Good Law Project, together with two trans people and one intersex person who had been asked to stop using the women’s/men’s toilets at work following the update, challenged this interim update in court in England, claiming that it was wrong and unlawful.
While this challenge was being considered, in October, the EHRC removed the interim update from their website.
However, the EHRC have also prepared a more detailed “Code of Practice” saying much the same thing. That can only be brought into effect if it is first approved by the UK Government and then the UK Parliament. The Government are currently considering it. Friday’s court ruling could have a big impact on the Government’s reaction to the proposed Code of Practice.
There has been a lot of noise and perhaps a lack of clarity across the mainstream media and social media.
We wanted to try and explain what has happened in an accessible way so that folks can better understand a complex situation and judgment.
Whilst it is not yet totally clear what the implications of this judgment are or indeed what may happen next and when, here is a breakdown of what the judgment said and what we know of next steps as confirmed thus far by parties involved.
While the judgment was in an English court, its implications apply to Scotland, as well as England and Wales. (Northern Ireland has its own, different, equality law and Equality Commission This is because the laws considered by the Court in its ruling apply in all three countries.
What does this mean? This means that the judge found that the publication of the interim guidance and the advice in it was not unlawful.
He did however say that the way that the interim update was further updated after publication was “opaque and, for that reason, was very unsatisfactory”.
That did not make it unlawful.
This part can be read at paragraph 92 of the judgment.
Whilst GLP lost on this point, that does not mean that there was nothing positive coming from the judgment, nor that no further positive progress may be made in ensuring trans people’s rights are upheld. Though there are clearly both positive and negative aspects of the judgment.
What next?
We are all still awaiting the EHRC Code of Practice being approved or ‘sent back’ by The UK Minister for Equalities for changes. We think that some of the things said in the judgment will likely require the Code of Practice to be sent back. We’ll discuss these more below.
The judgment said that;
This is because a cis man is unlikely to be able to successfully claim discrimination for being excluded from the women’s toilets (or indeed a cis woman from the men’s toilets), because of the availability of men’s (or women’s) facilities which are just as good. It would therefore be unlikely to be considered ‘less favourable treatment’ to be unable to use one or the other.
However, each case of a policy on the use of toilets would be specific to context and an argument in any potential claim of discrimination would be dependent on the facts of the case.
What does this mean? This means that it’s not per se unlawful to provide trans-inclusive toilets as a service provider. Service providers will need to ensure that their women’s and men’s spaces are equally good quality, but if they do, they should be able to lawfully operate the spaces as “women including trans women” and “men including trans men”. While they won’t necessarily need to label these toilets as anything other than “women’s” and “men’s”, in our view it may sometimes be helpful to do so so trans people are confident about a service’s inclusive approach. This is a positive outcome of the judgment, as many people understood the EHRC’s interim update, and the proposed Code of Practice they consulted on, as saying that this was no longer possible under British law.
This interpretation of the SC judgment, if correct, will be applicable across Britain, including in Scotland. What the judge has stated suggests that the SC ruling allows for services to choose to be trans inclusive and for trans people to access facilities that match their gender identity in some cases across services and facilities. These facilities would be considered “women-only” or “men-only” but not “single-sex” in law.
Some services may choose to become trans-exclusive, that is, to operate on a “biological sex” basis. Before the UK Supreme Court judgment in April last year, Governments, the EHRC and service providers understood the law to mean that trans people’s exclusion from single-sex services and facilities in line with their gender identity was only lawful where it was a proportionate means of achieving a legitimate aim. Now, the threshold for exclusion is understood as being considerably lower. If a single-sex or separate-sex service can be justified, then trans people can be excluded from such services in line with their gender identity as the default. These services would be considered “single-sex” or “separate-sex” in law.
Considering these two points above then,
The court rejected GLP’s argument that the EHRC’s interim update had said that it WAS unlawful to allow trans people to use service providers’ toilet facilities matching their gender identity.
Because the EHRC didn’t explicitly say that it would be unlawful if trans people used facilities in accordance with their gender identity, they did not in fact misdirect anyone. So, the interim update was not unlawful.
Whilst the guidance wasn’t unlawful, it did not lay out the facts in relation to how it COULD be lawful to provide inclusive facilities that trans people COULD use in line with their gender identity in some contexts where these are provided separately to women and men. This judgment means we now know that is possible.
What does this mean? This means that the interim update was unclear, and incomplete, but not unlawful.
As noted above, the EHRC has also proposed a detailed Code of Practice for service providers. The proposed code is currently being considered by the UK Government.
The proposed code says that services provided separately for women and men must be operated on a “biological sex” only basis. We know now from Friday’s court judgment, that the truth is more nuanced, and that services can be operated on a trans-inclusive women’s and men’s basis.
It is on this basis that GLP have written to Bridget Phillipson, the UK Minister for Equalities, to ask that she reject the code as this aspect must be corrected and clarified. Link to Good Law Project’s letter to the UK Minister for Equalities
GLP have also encouraged people to write to her asking the same here: Link to Good Law Project’s email your MP campaign
We very much agree with the GLP that the UK Minister for Equalities should reject the code.
The court detailed that
This is because the 1992 workplace regulations say that unless you have enough single occupancy toilets, you must provide separate men’s and women’s toilets.
The court applied the same reasoning as the Supreme Court did last April and decided that in the 1992 regulations the meanings of men and women are “biological”.
What does that mean? This means that at least some workplace facilities that are provided separately for men and women must be provided on the basis of ‘biological sex’.
However, the court DID NOT say that this meant that trans employees must use the toilet / changing room matching their “biological sex.” They stated that workplaces should provide, in addition to single-sex facilities provided on the basis of “biological sex”, facilities that are not discriminatory against trans people.
What does this mean? This means that employers must not force trans people to use toilets for their “biological sex”, but should provide non-discriminatory options such as additional non-gendered toilets.
This can be found at paragraph 42 of the judgment.
What is less clear for workplaces than it is for service providers, is whether this could include providing some women-only and men-only facilities that are trans inclusive, or whether it can only include gender neutral or single-occupancy facilities. It also means that some trans people whose workplaces do not already have appropriate toilet facilities may find themselves unable to use the toilet at work – essentially meaning they cannot go to work at all.
On the question of whether the law, following the Supreme Court ruling (and subsequently detailed within the interim update from the EHRC), is compatible with the ECHR, the court said that
and
There is no incompatibility with Article 8 of the ECHR, which is the right to respect for private life (the article under which most trans rights cases at the European Court of Human Rights have been won).
The court also said that, even if the court is wrong and the law does require trans people to use facilities on the basis of their “biological sex”, that this interference with trans people’s Article 8 rights may be capable of justification due to the fact that (as with most articles) the rights and freedoms of others must be taken into account and balanced. Still then, they say, there would be no incompatibility declared.
This part can be found at paragraph 99 -100 of the full judgment.
What does this mean?
This means that the Judge did not find that the law as interpreted following the SC ruling would be incompatible with trans people’s Article 8 rights under the ECHR. He decided this because, in his view, trans people could still access the facilities they need in services and the workplace.
We would argue that we don’t think the law as it stands following the SC ruling does uphold trans people’s dignity, autonomy and respect for their identity. Will service providers and employers provide suitable facilities for trans people? This court judgment suggests that they can choose to do that, but following the Supreme Court ruling last April, it will be much simpler for them to choose not to.
Read our Human Rights analysis of the Supreme Court judgment
While access to toilets was the focus of this case, the principles of the judgment will apply to all services across the UK. While it is perhaps more realistic for services to provide more inclusive toilet facilities, how will this work in more complex services provided separately to men and women – like emergency homeless accommodation, or hospital wards? The impacts on trans people are likely to be much greater in these settings.
Even if an employer provides a gender-neutral toilet that a trans employee can use, so that they don’t need to use the toilets for their “biological sex”, isn’t that likely to out the person as trans to all their colleagues? We would argue that that is a breach of their ECHR rights.
The Good Law Project intends to push back here too and has stated that they;
“[W]ill appeal those points on which they have lost, to the domestic court of appeal and Supreme Court. Good Law Project will also support applications to the Court of Human Rights in Strasbourg for breach by the United Kingdom of its Convention obligations and a reference to the Court of Justice in Luxembourg for breaching the non-regression provisions in the Good Friday Agreement. If the High Court decision is right, it must follow that the Supreme Court’s comments that ‘a biological sex interpretation would not have the effect of disadvantaging or removing important protections under the EA 2010 from trans people’ were wrong. And if they were wrong then the human rights of trans people have regressed.”
What does this mean? This means the Good Law Project are appealing the parts of the judgment relating to the impact on trans people’s Article 8 rights. These appeals will likely go beyond the remits of the UK Courts, to the European Court of Human Rights. This means it is far from over – although it will likely be many years before the case reaches the European Court of Human Rights in Strasbourg.
Following Friday’s judgment, GLP have written to Bridget Phillipson, the UK Minister for Equalities, saying that she must reject the EHRC’s proposed Code of Practice, as it’s incorrect. It did not describe how service providers could remain trans inclusive following the Supreme Court judgment and was not accurate about the law. They say she must reject it to be acting lawfully.
Read GLP’s letter to the UK Minister for Equalities
We agree wholeheartedly, and call on the UK Government to ask that the EHRC address these omissions and update the Code to ensure service providers and workplaces can do all they can to protect the rights of trans people and to ensure no further harm is done.
You can write to your MP and support GLP’s campaign: GLP’s email your MP campaign
Their letter also says that GLP will appeal the judgment. First to the Court of Appeal, then the Supreme Court. And if needed to the European Court of Human Rights. They also say that they will appeal to the Court of Justice for the European Union regarding the law in Northern Ireland. So it is likely that the arguments made in this case, and the impact of the Supreme Court ruling on trans people’s equality and human rights, will remain the subject of ongoing court cases for many years to come.
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Scottish Trans is part of the Equality Network
Scottish Trans is the Equality Network project to improve gender identity and gender reassignment equality, rights and inclusion in Scotland. The Equality Network is a leading Scottish lesbian, gay, bisexual, transgender and intersex (LGBTI) equality and human rights charity.
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