Making sense of the EHRC judicial review

I have to confess I couldn’t follow the live tweeting and I didn’t understand what was going on. I thought it was important that I did. So I read the skeleton arguments and I think I now understand a little better. I am sharing this in case you will benefit from my thought processes. I think it’s really important that we understand as best we can what is happening here.

The recent judicial review was brought by The Authentic Equality Alliance (the AEA) to challenge s paragraphs 13.57-13.60 of the Equality and Human Rights Commission (EHRC) Code of Practice on “Services, Public Functions and Associations” (the COP). This came into force in 2011.

The challenge was to the paragraphs of the COP that covered “Gender reassignment discrimination and separate and single-sex services” pursuant to the Equality Act 2010 (the EA 2010).

There was a ‘permission hearing’ on May 6th to see if the AEA could proceed to a full hearing. The Judge decided it could not as it got the law wrong and had taken too long to make its application - judicial review has very strict timelimits of no more than 3 months.

What wasn’t controversial?

Both parties agree that if the COP was wrong in law, then it could be judicially reviewed. Both agreed that the relevant paragraphs in the COP should be treated as an ‘accessible and practical explanation’ of the law and not treated as a statute

Further, the court should be slow to interfere with the EHRC’s assessment of how to communicate ‘practical advice’ as it had expertise in this area and had carried out a detailed public consultation.

The particular issue in this case.

This was how the COP dealt with service providers who excluded trans-persons (TPs) from the separate or single-sex service (SSS) of their “acquired gender”. Such ‘service providers’ could cover womens’s refuges, changing rooms and toilets. When does the Equality Act 2010 allow this to happen?

The COP said that the EA 2010 does allow exclusion of a TP provided that “the exclusion is a proportionate means of achievinga legitimate aim” (COP paragraph 13.57). Service providers will need to balance the needs of the TP for the service and the harm to them if they are denied access, against the needs and harm suffered by other service users.

The AEA’s case as originally pleaded ,claimed that the COP was underpinned by a “fundamental misconception” and “fundamental error of law” when looking at TP who did and TP who did not have a gender recognition certificate (GRC), and the EHRC should make a distinction between the two. Although the precise number of people claiming to be TP is not clear, the numbers of GRCs in existence are fairly low - about 5k - so it is clear that there will be TP who have lived for many years in their ‘acquired gender’ who do NOT have a GRC.

The AEA argued that a ‘trans-exclusionary policy or practice’ required justification if applied to TP who did have a GRC but NOT to a TP who didn’t.

The EHRC didn’t accept this and said it was a ‘surprising’ argument, given that a TP even without a GRC may have lived for many years in their ‘acquired gender’ and thus should not be excluded from a SSS of that ‘gender’ without any justification being required.

In correspondence the AEA appeared to accept that a ‘trans exclusionary policy’ needed to be justified for TP who did and who did not have a GRC but stated that in ‘almost all cases’ it would not change the outcome, i.e. it will either be justified to exclude both kinds of TP or neither.

Given that the AEA were now accepting that exclusion of both kinds of TP requires justification, the EHRC said it was not now clear what ‘fundamental error of law’ it was said to have made.

The case then put forward by the AEA was that the COP should reflect the AEA’s position that if it is permissible to have a women’s service, it will “very likely” or “almost always”be justified to exclude trans-women from it, whether or not that TP has a GRC. This is because, the AEA argued, of the rights of “the large class of women who fear for their space being intruded upon by males” will always outweigh any impact on trans-women of being excluded from the facility of their acquired or lived-in gender.

The ECHR conceded that the AEA is entitled to its opinion, but it did not agree with it - and this disagreement was ‘simply not a proper basis for judicial review.’

The ECHR recognised that the debate on this issue had been toxic. But its position had consistently been that there are rights and interests which require balancing. TP, with or without a GRC, have a right to access services of their ‘acquired gender’. But separate and single sex service provisions are also important and refusal to support these can cause harm - that is expressly recognised in COP paragraph 13.60 and also in the publicly stated views of the ECHR. See for example what its former Chair said in 2019:

“One only has to look at the debate about transgender rights to see how polarized this discourse has become. It’s a good example of complicated issues and competing rights. We must reach a sensible accommodation to ensure that the rights of both women and the transgender community are protected.”

The EHRC thus argued that their position had always been clear; a TP can be excluded from a service where that is justified, and the EHRC had taken steps to bring that to the attention of service-providers whose guidance wrongly suggests that a TP must ALWAYS be permitted to use the SSS of their acquired gender irrespective of the needs of, or detriment to, others.

The EHRC strongly rejected any suggestion that its advice had lead to women being unsafe from violence and abuse in public and private spaces and hoped that the AEA would withdraw that allegation.

Some comments

This is necessarily a fairly short and blunt attempt at a precis. But I hope it is helpful. This is not the ‘great defeat’ that many are claiming. It is useful that the EHRC clearly states it does acknowledge that what is required here is a balance of rights - many have been stating confidently for many years that there is no possible clash of rights between TP and women. It would have been nice if the EHRC could have been clearer about this many years ago, but hey ho. Better late than never. It’s recent intervention in Maya Forstater’s case was also a pleasing sign that they are stepping up to the mark.

But I am now left even more confused than ever about the point and purpose of the Gender Recognition Act. What is the point of requiring a TP to jump through hoops to get a GRC if this is not relevant to any argument about the provisions of the Equality Act? I am not a discrimination specialist so I may be missing some finer part of the argument here. However, I would have thought an essential component of properly balancing detriment and benefit would be to consider if the person claiming ‘an acquired gender’ had gone beyond mere self identification to achieve that.

But the beating heart of wrongness here, in my view, is the continued conflation of sex and gender which does nothing but muddy the waters and risk detriment to women. Men may acquire whatever gender they wish. But no one can change sex. Women’s oppression and vulnerability is rooted in their sex - which they cannot identify out of. We urgently need to review the interplay between the GRA and the EA and be clear what we mean by ‘gender’ and what we mean by ‘sex’.

I think we need clear categories of service provision where those offering the service can be confident that they have clear reasons for excluding those who claim a female ‘gender’ but possess a male sex.

EDIT - Illuminating and helpful commentary from one who was there!

I am grateful for permission to publish this commentary from someone who attended the hearing.

“He started off the argument on the complexities of the exemptions in the EA and very early on he conceded that GRA changes sex. I do not think that’s correct for all purposes but there was no exploration of that. So that was the first big mistake. He failed to highlight that GR is a strange PC in that it impinges on another PC - sex - he didn’t explore sex vs gender at all. This potential for conflict of rights is a unique situation that only arises because of the GRA. It is separate to the broader point about not discriminating against people with PC of GR. His examination of the exceptions was very detailed and he lost the big picture. The J was confused and asking Qs and the QC’s response was to say things like ‘I’m not explaining this very well’ ‘I’ll come to that’ ‘If I am right…’ IT WAS PAINFUL.

The J said things like: ‘a trans woman is a biological male’ and instead of picking up his points and arguing from those e.g. TW are not W, he carried on with his textual analysis. The Judge was clearly lost and trying to Zoom out to the big picture. In response the QC carried on with these points making a distinction between trans people with a GRC and those without. He ended up in a cul de sac where the J asked him if his argument meant that trans women without a GRC should be treated just like men. This was not a good place to end up.

Of course the Judge then had to honour that the EA gives rights to people on the basis of GR, because it looked like he was denying those all together. I think in the judgement he said the arguments were absurd. He left it to the respondent to appear clear and logical. It was tragic. He should have started with the big picture. GR and Sex are different issues. This means the point where the law meets both PCs is tricky - hence the convoluted exemptions.

NO ONE asked if the exercise of rights to protect people with PC GR could impinge on the rights of women with PC sex but not GR. The whole conversation was about how sex exemptions might discriminate against people with GR. This is their conversation. It’s territory on which they win. The argument needs to be run the other way to expose how ludicrous this proposition is. The J accepted without Q the hidden assumption that GR discrimination trumps Sex discrimination. No where does the EA say that. It’s bullshit. I think the J would have been open to the flipped arguments but no one presented them to him. If a measure has to be reasonable proportionate, of course you can exclude one person - who is different - to protect the majority. Particularly as there is a solution to provide specialist services for people with GR. ARRGGHHHHH”