The EHRC is adopting legal positions to allow for blanket discrimination against trans people on ideological grounds. There’s plenty of commentary online already on how prejudiced, vindictive and unworkable the EHRC’s new stance is; how it is a desperate solution in search of a confected problem, with obvious political undertones. Its understanding of the law seems to be no better. We here review the legal realities and include links to copies of our correspondence with them, in some of which they lay out their legal position. Last year we wrote to the EHRC as we were concerned that it had adopted legal positions that would allow organisations to discriminate against trans people on ideological grounds. In particular, we had begun to detect it moving to a stance that would allow discrimination against any trans person without a Gender Recognition Certificate (GRC) with respect to single and separate sex spaces.
The EHRC’s reply to us caused a great deal of concern. Whilst gaslighting us that its legal positions would not allow blanket discrimination against trans people without a GRC, it also doubled down on the legal position we had feared it was taking. Some of its supporting arguments, including legal misinterpretations, looked suspiciously like simple lifts from so-called ‘Gender Critical’ writing on the internet.
Our worst fears have now been confirmed. Yesterday, VICE published an article based on leaks around long-expected guidance from the EHRC on single and separate sex spaces. This proposed guidance (it remains to be seen whether the EHRC foresees giving it Statutory status or not) advises organisations to prevent trans people without a GRC from using facilities (such as toilets or changing rooms) that match their lived gender.
The law
Legal principles around trans people’s access to single and separate sex spaces were established in two groundbreaking employment cases A v Chief Constable of West Yorkshire Police [2004] UKHL 21 and Croft v Royal Mail. These principles are as follows
The legal gender of an individual is not the determining factor in whether they are allowed access to single and separate sex facilities [1].
If discrimination against a trans person takes place, the reasons for the discrimination must be practical; for example allowing co-workers time to adapt to a worker’s new gender, rather than simply prejudice [2].
Discrimination can occur only on a situation-dependent, case-by-case basis [3].
Discrimination can occur only if there is no reasonable alternative and then the least discriminatory approach must be adopted [4].
The legal basis for the decisions in A and Croft is the jurisprudence of the Court of Justice of the European Union. Discrimination in the field of services is also prohibited by retained EU directives so, by extension, the principles also apply to services. For services, these principles are codified in the well-known exception to the Equality Act 2010, Schedule 3 para. 28. Guidance for the operation of these exceptions is provided by the EHRC’s own “Services, public functions and associations: Statutory Code of Practice” paras. 13.57-13.60. The code explicitly states “If a service provider provides single or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present”. Transsexual is used in the legal sense here of referring to anyone with the protected characteristic of gender reassignment – which does not require the individual to undertake a medical transition.
The EHRC’s legal interpretation
The EHRC has decided that four cases that cover the law in this area are no longer relevant. In summary, its view is:
According to the new EHRC position, the Gender Recognition Act 2004 (‘GRA’), an act designed to grant rights to trans people, has wiped A and Croft, and the principles contained in these cases, from the law books. However, nowhere in GRA is there any statutory text that seeks to override A and Croft. On the contrary, the statutory language is carefully drafted to preserve the existing case law. If this wasn’t the case, there would have been careful transition provisions in the GRA to protect existing rights while individuals applied for their Gender Recognition Certificates.
Further, the principle of legality, per Lord Hoffman in ex parte Simms [6] states that “[f]undamental rights cannot be overridden by general or ambiguous words” [7]. In fact, there are neither general, ambiguous nor specific words in the GRA that might remove trans people’s rights.
Rather than the House of Lords and Court of Appeal decisions referred to above, the EHRC prefers the first instance decision of Green [8]. This is an obscure case that concerned the rights of transgender prisoners. It first came to prominence on the well-known transphobic website, Mumsnet, before being adopted by various ‘Gender Critical’ feminists. The EHRC has stated to us that Green was of “general applicability” and hence applies to employment and services.
We are beyond words with incredulity that not only has the EHRC disregarded a House of Lords and a Court of Appeal decision, but it has also decided that Green is the new precedent. This, despite the following:
Green was the decision of just one judge, HHJ Richardson QC, sitting in the High Court. It has received minimal judicial scrutiny.
Green was a judicial review case regarding whether a transgender prisoner had been treated in accordance with prison policy. The applicant tacked on an EA 2010 claim which was not fully argued. HHJ Richardson dealt with the claim in just nine paragraphs.
Green concerned a Category B prison - a totally different context from everyday life. HHJ Richardson even notes this: “At all stages of this case it is critical to remember the context in which I decide this case is that of a prison, and there are serious security considerations. What may happen in everyday life without too much difficulty, when translated to a prison suddenly poses truly difficult issues.” (para. 2) (our bold).
Green concerns a claim of discrimination in the course of execution of a public function. This type of discrimination is not a matter of retained EU law, but a matter for domestic law only. Therefore, it cannot be a precedent for areas of discrimination such as Employment and Services which are covered by retained EU law.
Green approved the case of Croft, with the court noting “I am influenced by the judgment of the Court of Appeal in [Croft]”. Even if Green is viewed as good law, for example as an authority on discrimination in prisons or the execution of public functions, [we do not view Green as good law at all], then it relies on the case of Croft. You cannot have Green without Croft.
Professor Alex Sharpe writing in the peer-reviewed journal, Modern Law Review [9] notes that Green is inconsistent with Croft and concludes “It seems unlikely Green would have survived an appeal or that our superior courts presented with such a scenario today would proceed as HHJ Richardson did.”
Alongside this post, we are publishing our correspondence with the EHRC, plus a full analysis of the legal problems of using Green as a precedent in a draft working paper (links below). Our letters to them include a full legal analysis of the legal problems with the EHRC’s position in our reply to them.
Conclusion
The EHRC, which has a legal duty to protect the rights of trans people, has decided that 9 paragraphs written by an Honour Judge sitting in the High Court are sufficient to destroy the rights of hundreds of thousands of trans people.
In the introduction to our paper on Green, we explain the ‘Gender Critical’ strategy to destroy the rights of trans people in the UK as follows:
“‘Gender critical’ feminists believe on ideological grounds that transgender women are really men and should be excluded from all female single-sex spaces. To achieve this goal, they are following a two-pronged strategy to undermine the legal protections for transgender people related to employment and services
.
i) They seek to rely on the High Court case of Green v Secretary of State for Justice, and ignore other cases and statutory authorities, in order to argue that only the roughly 1% to 2.5% of the trans population who have GRCs have any legal right to bring a claim under the Equality Act 2010 (‘EA 2010’) if they are excluded from using single-sex spaces in their acquired gender.
ii) They oppose attempts to reform the GRA to remove the legal and practical barriers for the remaining 97.5% to 99% of the trans population to formalise their legal status.”
Following the EHRC’s intervention in GRA reform in Scotland and now its draft guidance on single and separate sex spaces, it appears to have fully signed up to this strategy. Should it attempt to put it into practice, it can expect to face very determined legal opposition.
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Correspondence to/from EHRC 2021-22 etc: Letter to EHRC July 1st 2021 Reply from EHRC July 27th 2021 - the EHRC sets out its position Letter to EHRC January 11 2022 (no reply received) - TLP's response to the EHRC position The Case of Green: Draft Paper
[1] See LJ Jonathan Parker in Croft “As to the first question, [the respondent’s counsel] primary submission is that it is necessary to determine to which sex the applicant belongs, since the proper comparators are other employees of the respondent who are also members of that sex. I agree with [LJ Pill] that that submission is to be rejected. “ [2] Note the general tenor of A and Croft. LJ Pill in Croft notes “the particular difficulties which arise with respect to toilet facilities” (para. 48), that the employers “were entitled, for a period of time, to rely on the unisex disabled toilet as being a sufficient facility” (para. 55) but the decision as to when this period of time ended “cannot be determined by the views of other employees.” (para. 47). [Edit - this footnote replaces previous footnote to add clarity, 12/02/22]. [3] See LJ Pill in Croft para. 53 “The moment at which a person in the applicant's position is entitled to use female toilets depends on all the circumstances..” [4] See Baroness Hale’s speech in A para. 58 where she notes “…a derogation from an individual right which must be interpreted strictly and in accordance with the principle of proportionality” [5] MB v Secretary of State for Work and Pensions (Case C-451/16) [6] [2002] 2 AC 115 [7] Ibid. para. 12 [8] Green v Secretary of State for Justice [2013] EWHC 3491 (Admin) [9] (2020) 83(3) MLR 539