Here - in detail - is why the EHRC's 'advice' of April 3rd is legal nonsense.
After two opposing public petitions both reached over 100,000 signatures, British MPs will on June 12th debate the potential change of The Equality Act 2010 to redefine the term 'sex' as 'biological sex'. Such a change (also the centrepiece of anti-trans Republican programmes in a number of US states) is not yet part of the UK government's legislative programme, though rumours are circulating about its potential appearance in the next King's speech. The mood music from the UK government remains strongly anti-trans and key figures like Kemi Badenoch and Rishi Sunak himself are felt to be keen to remove trans people's long-established human and legal rights in the UK, under what they feel to be the politically bullet-proof narrative of 'protecting single-sex spaces' and women's rights. That this populist narrative has acquired a political urgency now in the UK, amidst the multiplicity of major problems the country faces, says much. Trans people have been dragged onto the battlefield of national culture wars, a small and vulnerable group whose exploitation as symbols bears no relationship whatsoever to their real lives and experiences. The misrepresentations, fears and lies promoted by the British media, and both repeated and refuelled by some in Parliament, long ago lost touch with reality. Yet these terrifying narratives have now acquired a momentum of their own. The June 12th debate itself will have no direct effect on the legislative agenda. But it may restimulate that momentum yet again, prompting further promotion of anti-trans views (with hostile positions framed all the way from liberal 'reasonableness' to naked hatred, across the British press).
And at the heart of this, the behaviour of the increasingly dysfunctional EHRC is likely to play a key role - specifically, its letter to the Minister for Women and Equalities of April 3rd.
So, as we approach another week in which the so-often toxic British national political discourse is likely to turn once more to trans people, we here break down in detail the EHRC letter and expose it for the legal rubbish that it is. We hope that those in legal or political arenas who still have an affection for facts, logic and truth as bases for organising society will be able to use it to fight the tide of self-sustaining bigotry. You can download our analysis below:
In summary, from the conclusion of our paper... In its letter of 3 April advancing the case to change the definition of ‘sex’ to ‘biological sex’ in the EA 2010, the EHRC is engaged in an extraordinary display of legal misunderstanding, confusion and prejudice. There is no trans crime wave. Trans people have received no new legal protections for 12 years. Instead, the EHRC is attempting to create and then (with confused and contradictory results) to solve a ‘problem’ that does not reflect reality.
Even by the EHRC’s own admission, the definition of the term ‘sex’ in the EA 2010 is clear. Paradoxically, given the stated aims of the EHRC, attempting to change it will lead to legal uncertainty. Claimed clarifications from changing the definition to ‘biological sex’ are either not necessary, do not produce any benefits or will not actually result from this legislative change. If the definition of the term ‘sex’ is changed, the consequential amendments that the EHRC recommend will do enormous harm to trans people in the UK. Trans people will be driven out of sports, employment and society as a whole. Large numbers of those who can leave Britain will do so, heading for jurisdictions where they will hope to find basic levels of societal respect and legal protections. Others, driven out of work, and feeling entirely unwelcome in British society as a whole, may be left subsisting on benefits.