Joint statement on the EHRC consultation: why it’s harder than usual to engage

The EHRC cannot fix the law, only the UK Government can. That’s why we are asking our community to join us in writing directly to the Minister for Women and Equalities and your MP 

We want to be clear with our community about why we are being cautious about engaging with the Equality and Human Rights Commission’s (EHRC) consultation on their revised Code of Practice following the Supreme Court’s ruling in For Women Scotland v Scottish Ministers. 

This consultation is about how to enforce a ruling that has changed how the law (the Equality Act 2010) is interpreted across Scotland, England and Wales. That means that while the words in the law may be the same, what they now mean is very different.  

The interpretation reached by the Supreme Court actively harms trans people and undermines LGBTI+ equality. The Supreme Court ruled that in the Equality Act, the words ‘sex’ ‘man’ and ‘woman’ always have a “biological” meaning. While this biological meaning is not properly defined by the Court, it is clear that the word ‘woman’ no longer includes trans women, and that the word ‘man’ no longer includes trans men, for the purposes of the Equality Act. 

The EHRC’s draft Code of Practice reflects this. It recommends service providers ask about, and potentially demand proof of, someone’s sex as recorded at birth. We believe that this undermines the dignity, privacy, and safety of trans people and indeed anyone who doesn’t meet the narrow expectations of femininity or masculinity (whether trans or cis) imposed by society, or indeed those who are intersex or have a variation of sex characteristics. It risks normalising discrimination across services, workplaces, and public spaces. 

The draft Code focuses entirely on how to exclude and segregate trans people from single-sex services and spaces. It provides no useful information for the many services who are currently running successful trans-inclusive services and who want to continue to welcome and include trans people.  

The consultation is an opportunity to make suggestions on how to improve the draft or point out where things aren’t clear. However, we think the content of the draft Code is so harmful to trans people in its current form that it’s hard to imagine the EHRC making the kinds of radical changes needed to make it work for our community.  

Although we are being cautious, we are not being passive or giving up, and we will still be responding to the consultation. But we all agree that the most important place for all of us to direct our collective energy is towards where it can lead to change; and it is clear that the consultation is not an opportunity to challenge the Supreme Court ruling itself or to make a case for changing the law – as we think is needed.  

The EHRC cannot fix the law, only the UK Government can. That’s why we are asking our community to join us in writing directly to the Minister for Women and Equalities and your MP, calling for: 

• An updated Code that does not breach trans people’s human rights
• An updated Code that prioritises inclusion over exclusion
• A change to the law to ensure the privacy, dignity and safety of trans people

Scottish Trans have made a simple tool that can help you find the words – or use your own entirely:  https://www.scottishtrans.org/emailfortransinclusion/ 

If you have the energy, you can also respond to the consultation (there is guidance from Scottish Trans, Trans Actual and Mermaids here: https://www.scottishtrans.org/supreme-court-ruling-on-sex-in-the-equality-act/guidance-for-the-ehrc-code-of-practice-consultation/)  

But we think the best place to focus our energies is on those who can really make a difference. 

Together, we can raise a powerful, united voice for justice. 

With solidarity and strength, 

LGBT Health and Wellbeing

Equality Network

Scottish Trans

LGBT Youth Scotland

LEAP Sports