TL;DR: A new judicial review sets out that the EHRC Code of Practice, which recommends the segregation of Trans+ people, "misstates the law" and ignores a recent High Court ruling which says common sense should be the guiding factor in determining bathroom use.
The EHRC code of practice fundamentally "misstates the law", says a new pre-action protocol for a judicial review. The action seeks to challenge the EHRC’s recommendation to segregate Trans+ people from single sex spaces, which began in England, Wales and Scotland on August 5th.
The court action was announced just hours after the 'bathroom ban', as it is being internationally viewed, came into place. The judicial review is being brought by a Trans+ person and a Trans+ inclusive organisation, with the support of advocacy group the Good Law Project.
It argues that the Equality Act was written in consideration of "fact-specific proportionality and reasonableness questions", and that this common sense approach is supposed to allow organisations of all kinds to create services based on the needs of their users. It therefore sets out that blanket bans on Trans+ inclusive services were never intended by the law, and the EHRC's interpretation of this is wrong.
The case goes further and argues that, if the guidance is found to be lawful, it therefore breaches international human rights laws, and needs to be fixed with further legislation.
Good Law Project’s trans rights lead, Jess O’Thomson, said, "It’s difficult to believe just how far backwards our government has gone on trans human rights. This Labour government pushed through its transphobic guidance in the face of opposition from many MPs, including nearly a hundred of its own backbenchers. It’s not just immensely harmful. We think it’s unlawful, and completely against human rights."
Where could the EHRC code be misstating the law?
The review argues that the code is wrong on three bases. It sets out that the code's assumption that creating or running Trans+ inclusive services would "very likely" discriminate against women is incorrect. Instead, the review argues that these services would be created on the basis of gender identity, not sex, and therefore do not constitute sex discrimination. Furthermore, the case says the code fails to mention the positive action defence clause within the Equality Act, which could be used to justify a Trans+ inclusive service.
The argument from gender critical campaigners that has been adopted into the code argues that if a Trans+ woman was to use a women's service, then men would be able to claim sex discrimination. The judicial review contests this, setting out that the Equality Act relies on the principles of proportionality tests, and this too would not stand.
In this vein, the case argues that the code’s advice that only offering mixed-sex services would be directly discriminatory towards women is also incorrect because unisex services treat all people, men and women, the same - and therefore, doesn't create the basis for a direct discrimination claim.
This was what the High Court ruled in February, when looking at the EHRC's interim guidance. It ultimately decided the EHRC interim guidance did not force Trans+ people to use single-sex facilities in line with their birth sex, nor did it make it unlawful for service providers to provide trans-inclusive facilities like men's and women's changing rooms. It also said that allowing a Trans+ woman to use women's toilets does not discriminate against cis men, as some gender-critical campaigners have argued.
In that ruling, Judge Swift set out that people who provide facilities to the public "should comply with the law but also be guided by common sense and benevolence rather than allow themselves to be blinkered by unyielding ideologies." However, the ruling did so whilst dismissing the Good Law Project's attempt to overturn the interim guidance.
Human rights backstop argument
The case also features a second layer of arguments. If the court finds the code to be lawful, it sets out that this means the current legislation breaches human rights laws.
It argues that if the recommendation for segregation is what the law intended, then the law itself breaches the European Convention of Human Rights and needs to be rewritten.
It argues the code would breach Article 8, the right to privacy, because the code forcibly outs people. It also says it could breach Article 11, freedom of association, as it prevents groups from being Trans+ inclusive.
Analysis: Know your rights, and pee in peace
The adoption of this code is a horrific, grim turn for human rights in the UK. Looking at news coverage from elsewhere in the world, the UK is being described as banning Trans+ people from public bathrooms in the broadest sense, with pundits around the world unable to grapple with the incoherent practicalities of the code. In that light, many are seeing the code as an apartheid action not dissimilar from the racist ones that gripped far too much of the world until only a few decades ago.
But a critical takeaway from guides like those by TransActual is that this is a code for service providers to consider in ensuring they don't break the law. It is not something for any individual to use to police others – or themselves.
It's concerning that service providers can – in some situations, usually when spurred by complaints – ask people to confirm their sex assigned at birth. But you can decide whether or not to declare this, and you are under no obligation to provide proof. You can, however, remind the service provider that not offering access to a facility in a way that protects your safety and dignity breaches your rights – and could leave them liable to a court challenge.
There have been calls from many activists to resist the code by continuing to live your day-to-day life as usual. It's inherently queer advice. But on top of that, this code is not a done deal. It’s still facing multiple court challenges – and the fight against it is far from over.
This is a stark and scary moment.
Segregation has already begun - with signs appearing across even spaces that might feel like progressive bastions - pointing Trans+ people to gender nuetral bathrooms.
Despite claims 'sex questioning' will be rare, forms of gender policing have been on the rise since anti-trans movements gained a foothold in the public sphere.
We're aware of all kinds of attempts to undermine Trans+ rights taking place at businesses, in government and in civil society. But we simply don't have the resources to investigate them all.
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