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The pieces of the EHRC jigsaw come together and it’s worse than we thought.

The final piece in the EHRC’s attempted plan to ban trans people without GRCs from separate sex facilities that match their acquired gender emerged on Monday. Luckily, it seems to have stalled, at least for now.

In July last year, fearing that the EHRC had adopted legal positions allowing blanket discrimination against trans people, we wrote to challenge them. The body of the EHRC's letter back to us clearly confirmed our worst suspicions, but the Joint Acting Chief Executive gave us a written assurance that blanket discrimination against trans people was not allowed. She quoted the part of EHRC's Services Code that requires any discrimination against trans people to "be applied as restrictively as possible" and on a "case-by-case basis". She concluded, "Therefore we disagree that we are making it possible for an organisation to post signs saying ‘No trans people without a GRC’ as you suggest."

We believe that the EHRC was gaslighting us. As has now been revealed by the i's leak of a letter from Liz Truss to Baroness Falkner, within 6 months of their letter to us, the Chair of the EHRC was informing the government of its intentions to modify the Services Code, by changing the statutory guidance, for the first time since it had been laid before Parliament 11 years ago. This is significant. Some commentators, whilst speculating that the EHRC was plotting something grim, believed that it would not try to go as far as revising the statutory guidance.

When Vice claimed that the EHRC was planning to issue guidance allowing blanket discrimination against trans people, some felt that the sources on which journalist Ben Hunte was drawing might have been exaggerating (though not us, given that we had had a letter from them much of which had said - despite assurances - that this was literally what the EHRC was minded to do). And from what we have seen now, it turns out that the EHRC had put in place all the legal pieces, from the positions it adopted to modifying the Services Code, to allow this to happen. They were just waiting for the green light from the government.

The only positive that comes out of this ghastly tale is the government’s seeming reaction; giving Baroness Falkner notice that it is not going along with the EHRC’s plans. The government, said Liz Truss, “has no interest in changing the current situation where transgender people are able to use facilities of their chosen gender”.

What’s behind Truss’s stance? We could speculate, but we won’t. Other leaks from the EHRC have suggested that the government has had its fingerprints all over the shameful quashing of guidance for schools on trans kids. If that’s true, the government has unethically damaged the neutrality of the EHRC. On the question of single-sex facilities though, the government seems to have done the right thing. It is required by law to either accept or reject EHRC draft statutory guidance [s. 14(7)(a) EA 2006] and it looks to have chosen the latter route.

The EHRC has been asked to privately “engage” with and “reassure LBGT groups on these issues”. As yet, we and others remain distinctly unreassured. Our breath is not held as we wait for the phone to ring.

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The Trans Legal Project blog is a place where we express opinions and offer commentary on aspects of the law, recent or upcoming cases etc.

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