This new guidance is not Statutory Guidance. Organisations are not compelled to follow it. We do not believe a court would support it and we believe that there is a strong chance it would be overturned in Judicial Review. In the meantime, we urge organisations to continue to comply with the EHRC’s own Statutory Guidance as breaches of Statutory Guidance (which, bizarrely, this new material from the EHRC contradicts) can be used as evidence in court.
In the context of services, the law states that trans women can be excluded from separate-sex spaces as a proportionate means of achieving a legitimate aim. Bigotry is not a legitimate aim. Nor is trying to drive trans people completely out of society because of ungrounded and confected fears. It would be absolutely unthinkable for the EHRC to announce guidelines of this sort in respect of any other minority group within British society. If they did so there would be a colossal outcry and we hope that one will follow in response to this.
We will of course continue to digest the implications of the EHRC's actions today and will share further responses as necessary.
Sir Keir Starmer has finally come off the fence on trans rights. He recently stated that
“A woman is a female adult and, in addition to that, trans women are women, and that is not just my view – that is actually the law” adding “It has been the law through the combined effects of the 2004 [Gender Recognition] Act and the 2010 [Equality] Act.” This is to be applauded.
However, well-known legal academic and specialist in this field we mean children's author with a BA in French, JK Rowling, stated in a tweet that “Keir Starmer publicly misrepresents equalities law”, failing to provide any justification. This children’s author’s view about the position taken by an ex-barrister who was previously Director of Public Prosecutions and Head of the CPS was obviously deemed newsworthy by not just the Daily Mail and Daily Mirror, but the Times, Guardian, Telegraph, Independent, Evening Standard and Sky News.
.
Hold the front page. No wait, please don’t, actually. Because as you might expect, Keir Starmer was absolutely correct. Trans women are recognised as women by the executive and in law; the extent of the recognition depends on the stage of their transition and whether they have satisfied certain formal requirements.
A trans woman who has not yet begun her transition can still be protected from discriminatory dismissal [Equality Act 2010 (‘EA 2010’)].
A trans woman can change her name merely by adopting a new name and requiring everyone to use it.
A trans woman who is living as a woman can declare she is a woman in the Scottish Census [Fair Play for Women v The Register General for Scotland [2022] CSIH 7].
A trans woman with evidence of her change of name (e.g., deed of change of name, statutory declaration) can change her sex on her driving licence.
A trans woman with a letter from her GP can change her sex on her passport.
A trans woman who has made sufficient progress in her transition cannot be excluded from female-only spaces in the course of her employment (and by extension from services to the public as well) [EA 2010, Croft v Royal Mail [2003] EWCA Civ 1045, Equality and Human Right’s Commission’s Services, Public Functions and Associations Statutory Code of Practice as confirmed by the High Court in AEA v EHRC [2021] EWHC 1623 (Admin)].
A trans woman who has made a complete transition or has a Gender Recognition Certificate (‘GRC’) will be viewed as female for the purpose of female-only roles [EA 2010, Gender Recognition Act 2004 (‘GRA 2004’), A v Chief Constable of West Yorkshire Police [2004] UKHL 21].
A trans woman with a GRC can change the sex and name on her birth certificate [GRA 2004].
Well done to Keir Starmer for knowing these basic facts. It seems like passing those law exams and becoming one of the most prominent lawyers of his generation wasn’t all in vain. Though, obviously, he’s not yet managed to write any children’s books.
The potential consequences of letting this ruling stand could be serious indeed.
In our previous blog on the recent For Women Scotland v Lord Advocate [2022] CSIH 4 (‘FWS’) judgment we argued that if the Scottish Government has the power to reform the Gender Recognition Act 2004 (‘GRA’) in Scotland, then it also has the power to decide who falls into the protected characteristic of woman [1] for the purposes of the Gender Representation on Public Boards (Scotland) Act 2018.
But (as any maths or philosophy professors following along will confirm) it is logical that if A implies B, then not A implies not B [2]. This seems to be the stance that Scottish lawyer and former President of the Scottish Law Society, Ian Smart, has argued by saying that the Inner House judgment in effect means that it is ‘outwith’ (i.e. beyond) the legislative competence of the Scottish Government to enact GRA reform in Scotland. We can’t fault his logical inference, but we do not accept his premises. We believe the Scottish government does have the power to modify the GRA and hence that the decision in FWS was wrong.
If Smart is right, the 97% of trans people in Scotland without a GRC will be discouraged from applying for non-executive roles on Public Sector Boards due to fear of outing themselves. Not great, and certainly unfair, but not perhaps of itself a life changer for many (apart from the legal precedent it might signal). But, alas, there is more:
The Scottish government’s proposed GRA reforms will be stopped in its tracks.
The ‘spousal veto’ may have to be restored in Scotland as the legislation that removed it in Scotland was passed by the Scottish Parliament. [3]
Six years of media hatred on both sides of the border will have done its work. The upshot will be no improvement in the legal rights of trans people in Scotland, as in England, and the ever-present spectre of being banned from single and separate sex spaces.
The next move from the ‘Gender Critical’ activists seems obvious; to bring an application for Judicial Review claiming that the Scottish Government went beyond its powers in removing the ‘spousal veto’ from the GRA in Scotland. If that is successful, it’s not impossible that some Scottish trans people might be stripped of their GRCs.
To stop this, the Scottish Government needs to appeal the decision in FWS to the UK Supreme Court and to win. As the Scottish Government has not yet announced its intention to appeal, we believe that it is essential for every trans supporting group who has the ear of the Scottish Government to make clear the potentially dire consequences of inaction in this regard.
**************
[1] But not the power to change the protected characteristic. A change to the protected characteristic could include changing it to a three-way male, female, non-binary characteristic.
[2] By contraposition. See https://en.wikipedia.org/wiki/Contraposition
[3] See for example the Civil Partnership (Scotland) Act 2020 sched. 2 para. 5.