MBM response to the Consultation on the EHRC Code of Practice for Services, Public Functions and Associations

Summary

Our response to the EHRC consultation on its revised draft Statutory Code of Practice (CoP) for service providers is shown below. We note that the draft CoP appears to be placing pressure on providers in Scotland to ignore a relevant and definitive ruling of the Inner House of the Scottish Court of Session, by giving certain men, as defined under the Equality Act, rights of access to activities and services being lawfully provided under that Act for women only; and to be ignoring the ruling itself, by arguing that such providers are required to justify the exclusion of certain men from women-only provision, based on anything other than their sex. Given the evident conflict between the Inner House ruling and the draft COP, we believe that the EHRC should publish the detailed legal reasoning that informs its draft on this point, as a matter of urgency.

The letter was also covered in the Daily Telegraph (Scotland).

Equality and Human Rights Commission
Arndale House
Arndale Centre
Manchester
M4 3AQ

By email

2 January 2025

To whom it may concern

CONSULTATION ON THE EHRC CODE OF PRACTICE FOR SERVICES, PUBLIC FUNCTIONS AND ASSOCIATION

This is a response to the consultation issued by the EHRC on 2 October on revisions to its Code of practice (CoP) for services, public functions and associations. We are writing in this format rather than using the pro forma as we wish to draw urgent attention to the single issue we are raising.

On 18 February 2022, the Inner House of the Court of Session ruled that the Scottish Government had been wrong to conflate the protected characteristic of sex with the protected characteristic of gender reassignment: [2022] CSIH 4 P697/20.¹ In a judgment that was not appealed and is binding in Scotland,² it determined that a person’s sex for the purposes of the Equality Act was not affected by whether or not they were also covered by gender reassignment. The Court observed (emphasis added) that:

‘Section 11(b) indicates that when one speaks of individuals sharing the protected characteristic of sex, one is taken to be referring to one or other sex, either male or female. Thus an exception which allows the Scottish Parliament to take steps relating to the inclusion of women, as having a protected characteristic of sex, is limited to allowing provision to be made in respect of a “female of any age”. Provisions in favour of women, in this context, by definition exclude those who are biologically male.‘ (para 36)

In Scotland,³ a ‘biological male’ is therefore always a man for the purposes of the Act, regardless of any other characteristic he may have. The only point of uncertainty, currently before the UK Supreme Court, is whether or not such a person with a Gender Recognition Certificate deeming his ‘gender’ to be ‘female’ is an exception to this.^{4 5} As a result of the 2022 judgment the Scottish Government was compelled to pass new primary legislation to ensure that measures concerned with women’s representation on public boards did not include a male person with the characteristic of gender reassignment “living as a woman.”

At various points, the EHRC draft CoP however simply repeats the position in its existing CoP, issued prior to the 2022 judgment. It states that providers not only may, but sometimes must, act as though the characteristic of gender reassignment changes a person’s sex under the Equality Act. For example (emphasis added):

‘13.71 This means that organisers can prevent trans persons from participating in a single sex sporting activity with persons of the opposite birth sex, if it is necessary to do so because their participation would create a competitive advantage or disadvantage, or would potentially endanger their own safety or that of other participants. Where these factors do not apply, the exception cannot be relied on and any restrictions on their participation will be unlawful.’

In paragraphs 13.113 to 13.123 where the draft CoP refers to “trans persons” this is evidently not limited to those of the relevant sex (as per the Equality Act) for a particular single-sex service who also have the characteristic of gender reassignment. It is clearly intended to cover those of the opposite sex, as well.

‘13.113 …. limiting or modifying access to, or excluding a trans person from, the separate or single-sex service of the gender in which they present might be unlawful if the service provider cannot show such action is a proportionate means of achieving a legitimate aim. This applies whether the person has a GRC or not.’

‘13.119 If the service provider’s reason for their action does outweigh the discriminatory effects, it is likely to be lawful to exclude trans persons from the single sex service of the gender in which they present, or to modify or limit their access to the service.’

‘13.120 A private nursing home has separate wings for men and women, as a large proportion of residents request single-sex accommodation for reasons of privacy and dignity. A trans woman⁶ asks to reside in the women-only wing of the nursing home. The provider must consider whether there is any impact on the privacy and dignity of existing service users living in the women’s wing, and balance this against any potential negative impact on the trans resident, such as her privacy and dignity, if she were asked to reside in a male-only wing.’

The further discussion of at paras 13.124 to 13.129 on communal accommodation is not explicit that it is intended to have the same effect, but given the preceding paragraphs might reasonably be read as doing so.

The draft EHRC CoP therefore appears to be placing pressure on providers in Scotland to ignore a relevant and definitive⁷ ruling of the Inner House of the Scottish Court of Session, by giving certain men, as defined under the Equality Act, rights of access to activities and services being lawfully provided under that Act for women only; and to be ignoring the ruling itself, by arguing that such providers are required to justify the exclusion of certain men from women-only provision, based on anything other than their sex.

Given the evident conflict between the ruling and the EHRC’s proposed revised CoP, the EHRC ought to publish the detailed legal reasoning that informs the draft on this point, as a matter of urgency.⁸ As matters stand, this conflict creates potential risk and confusion for providers and service users in Scotland, and beyond.⁹ The lack of any reference to [2022] CSIH 4 P697/20, and absence of any discussion of its implications, will moreover have left those responding to the consultation, particularly from Scotland,¹⁰ lacking relevant information to which they were entitled.¹¹ Early sharing of the EHRC’s detailed legal analysis here, and allowing additional time for supplementary responses in the light of that, would help to address this significant omission.

Given its contents, we are copying this letter to Baroness Kishwer Falkner, Chair of the EHRC, John Kirkpatrick, Chief Executive, and Dr Lesley Sawers OBE, Chair of the EHRC’s Scotland Committee. We would be grateful if you could confirm that this letter will be taken into account as a response to the present consultation.

Yours sincerely,

Lisa Mackenzie
Dr Kath Murray
Dr Lucy Hunter Blackburn

Notes

1. Available at court-of-session-judgement-reclaiming-motion-by-for-women-scotland-limited-against-the-lord-advocate-and-others-18-february-2022.pdf
2. We understand that the judgment also has persuasive status in England and Wales, and to that extent the arguments we make here about Scotland are of wider application.
3. And also arguably in England and Wales, without need for further litigation: see note 2.
4. All parties to the current case, including the EHRC, appear to have accepted this judgment of the Inner House as a correct reading of the Act. It is reflected in uncontested parts of earlier judgments in the current case; [2023] CSIH 37 “Those without a GRC remain of the sex assigned to them at birth and therefore would have no prima facie right to access services provided for members of the opposite sex.” (para 56). It is also the position stated in the draft guidance itself at paragraph 13.112: “Providers should note that for the purposes of the Act, ‘sex’ means legal sex. This is a person’s sex recorded either on their birth certificate, or their Gender Recognition Certificate.”
5. We note that the references at the end of Chapter 13 do not include the 2022 ruling, while the ruling of the Inner House in the case currently before the Supreme Court for final determination is included.
6. We assume that the EHRC is using “trans woman” here to refer to someone who is male but wishes to seen and treated as a woman, rather than to someone who is a woman under the Equality Act but wishes to be seen and treated as a man. This language is not consistently well-understood: see Clarity matters: how placating lobbyists obscures public understanding of sex and gender – Murray Blackburn Mackenzie
7. Arguably also in England and Wales, see note 2 above.
8. Insofar as it relies on P v S and Cornwall County Council or Chief Constable of West Yorkshire Police v A and another (No.2), such reasoning needs to address the Inner House’s conclusions at para 38, viz.: “… neither [P v S] nor the Chief Constable of West Yorkshire Police (No 2) (supra) case, which anticipated the 2004 Act, is authority for the proposition that a transgender person possesses the protected characteristic of the sex in which they present. These cases do not vouch the proposition that sex and gender reassignment are to be conflated or combined, particularly in light of subsequent legislation on the matter in the form of the 2010 Act which maintained the distinct categories of protected characteristics, and did so in the knowledge that the circumstances in which a person might acquire a gender recognition certificate under the 2004 Act were limited.”
9. The draft guidance means, among other things, that the EHRC is inducing providers to make single-sex provision mixed-sex, under the terms of the Equality Act, even though the lawfulness of single-sex provision under the Act rests on a provider having concluded that single-sex provision, rather than mixed-sex provision, is specifically justified and justifiable. This at first sight places providers in an impossible position.
10. But possibly also more generally: see note 2.
11. The Gunning Principles require that a consultation provides sufficient information for respondents to be able to give it ‘intelligent consideration’: see for example The Gunning Principles.pdf.