The rise of 'EHRC Law'

The Badenoch and Truss appointed Equality and Human Rights Commission is decimating the lives of trans people in the United Kingdom. We've thought hard about whether to engage any further with them but decided that we would accept an invitation to one of their 'briefings' and make a submission to the consultation on the new Services Code. In this piece we explore why. Our submission is here:

TLP EHRC Consultation submission June 2025 (v2).pdf

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. A few years ago, Gender Critical, anti-trans activists built a highly effective smear campaign attacking Stonewall. They claimed - falsely - that the organisation had forgotten what the law said and was operating on the basis of what it wished was true. So-called 'Stonewall Law' became a fixation amongst anti-trans activists and is used still, years after Stonewall's profile and influence have been severely damaged by GC obsessions and its hounding by the right-wing press. Now we have 'EHRC Law' - the imagined meaning of law propagated by an organisation staffed by Kemi Badenoch and Liz Truss political appointees, with power and political capital and an ideological addiction to rolling back the rights of trans people in the UK. EHRC Law has taken on a whole new dimension since the catastrophic and legally ludicrous Supreme Court decision of April 16th, a moment in which the UK's apex court ripped up the Equality Act and years of black letter law, for no reason whatsoever. In the aftermath of that day, the EHRC has been articulating an interpretation of that decision so extreme that it goes way beyond even the so-called 'bathroom bills' that have appeared in the United States. EHRC Law takes as its starting point the need to read the Supreme Court's ruling in ways that ruin trans people's lives, and goes even further into imagined interpretations that are not supported by even the Supreme Court's incomprehensible judgment. EHRC law is not what the law is, but what the EHRC wishes it to be. Given that the organisation has shown little interest in listening to the views of the trans community for at least four years, should we engage with the EHRC now as it tries to bring down the hammer and ruin our lives in the UK? Here's our view.

As proud members of the UK's trans community, and in the light of everything above, whether or not to take part in the 'consultation' on its proposed new code of practice has been a tough call. That proposed code has appeared after the EHRC initially moved to exploit the Supreme Court ruling, rapidly promoting an extreme, biosegregationist reading of it in its legally irrelevant, but publicly devastating, 'interim update' on the Code.

Over the last few years we have attacked the EHRC many times, corresponded with them to voice our outrage and attended sessions at which their people spoke to express our opposition. Before the last election the EHRC was pushing, in written advice to the last government, to get the Equality Act rewritten and to redefine sex as 'biological sex'. This was EHRC Law in action and a long term aim of theirs, but it didn't make progress in the face of the Tory election defeat. We pressed for a Judicial Review of that written advice, attempting to stop them in their tracks, on a range of what we still believe were well-founded legal grounds. We put this to other trans-led and advocacy groups at the time but few were keen. We regret that we could not build support for it. It could have sent an important signal and critically it would have prevented the Supreme Court from actually referencing the EHRC's letter of advice in its own ruling the following year - in a kind of circular, Hall of Mirrors Of Prejudice by two transphobic British institutions. Of course, the world did then change in April this year when the UK Supreme Court, out legal nowhere, issued that ruling, presenting the EHRC with a gift wrapped opportunity to return to its agenda. We are clear. The EHRC is a creature of right-wing culture war obsessives. In our view it is duplicitous, agenda-driven and it will not protect trans people in the face of relentless attack from Gender Critical fanatics - some of whom are in senior roles there, or others who are in close alliance with them. With all that in mind, we nevertheless did decide in the last couple of weeks to engage with them in two ways. First, last week, we attended one of their "briefing" sessions on the new draft Code. That the EHRC was out there attempting to sell organisations on a proposed code that was supposedly still in the consultation stage likely says something about the reality of their commitment to actually listen to the results of that consultation. Some trans groups boycotted this process, not wishing to give the EHRC the opportunity to say that it had engaged with them, only, as usual, to ignore everything they said. Understandably. But we went. For two reasons. First, as a small legal research group, our expertise is in the law, and how it is being interpreted, misinterpreted, used and misused. We are interested in arguments made by opponents, because it is only in hearing them that it is possible to identify their shortcomings and, from there, to defeat them. We went because we wanted to know if - somehow - the EHRC was about to articulate positions that carried some legal logic or power and of which we and others needed to be aware. The answer to that question was simple. No. Their arguments were mostly weak and imprecise, their attempts to answer questions we put to them shallow and evasive. As a national legal advisory organisation there was a great deal of the "courts must decide".

This perspective is cynical and disingenuous coming as it does from an organisation with a huge platform, statutory responsibilities and political capital, that is about to launch guidance that will destroy trans people's abilities potentially to even live in the UK. It speaks to the EHRCs recklessly irresponsible notion that if they have acted in error it will be down to a poorly-funded community, individual by individual, to find hundreds of thousands of pounds to fight its way back to legal sanity through the courts, against a legal establishment, a hostile government, a fixated and hysterical press which will out and smear them at every chance, and a billionaire who has recently put her vast wealth at the disposal of anyone who wishes to ruin the life of a trans woman in court. Listening to the EHRC was both depressing - these people are pursuing a position driven by anti-trans dogma not law in our firm view - but also useful. It felt valuable to see it first hand.. EHRC Law is infused with ideological belief - it is created to backfill the reasoning behind a pre-determined aim of excluding trans people from society. This makes their logic incoherent and impractical. Also immoral. The second reason was simple. That they weren't going to listen, and possibly never will, was not the point. The EHRC's ability, behind closed doors in private meetings with government ministers or in its public statements, to gloss or whitewash its own failings is well known and whilst it may say that it did 'engage' with trans or allied groups because we turned up (who else was there is a matter for those groups to share, or not), the equal possibility exists that a boycott would result in an alternative, destructive narrative. This would be that the EHRC ran the sessions 'and the trans community couldn't be bothered to attend'. The implication they might try to promote also would be that we had somehow conceded defeat, submitting to EHRC Law. Nothing could be further from the truth of course. We're clear - the result of being there or not being there may be the same; no change. But the opportunity to speak, to tell them that they were wrong, and why - as our representative did, felt important. We had to say it, so that we can say that we said it, so that they cannot say that they did not hear it, the way the UK Supreme Court did not hear any trans voices at all. Whatever happens next. As it was, the day after the session, the Good Law Project announced that it had received correspondence from the EHRC in response to it's proposed action against them around its 'interim update'. This letter, written one working day before our session took place, in many respects chimes with the confusion that we sensed in the session itself. With characteristic disingenuousness, the EHRC's lawyers attempt in this letter to row back on the significance of the EHRC's 'update', claiming it to be no more than "observations - brief and high level", posted on their 'news' page and "subject to change", whilst ignoring how many organisations rushed to implement that advice immediately as the media and politicians promoted it as authoritative guidance from a statutory body. And critically, in the session we attended, the EHRC struck a different tone, claiming that the 'update' had been written under those statutory powers to issue advice and guidance. Cake and eat it, much?

We believe that the EHRC knew how its update would land, part of some kind of shock and awe strategy to railroad the country into draconian anti-trans discrimination before those affected could begin to recover from what had just happened to them. That's of course just our view. All we can say for certain is that we had conversations with trans women in the days after who'd suddenly been told by their workplace that they could no longer use the women's toilets, after years of doing so. Their fear and panic was clear. The court cases are already amassing.

Turning to the proposed changes to the Services Code, the questions remain. Participate or not? We have done so. The deadline for submissions is 11.59pm on June 30th (for submissions in Welsh it's July 15th). This is because we are interested in the law, and how (even after the Supreme Court tore up the Equality Act) it remains a mechanism to publicly demonstrate the incoherence of the views of those who do not believe that trans people should be treated with decency and respect. Our submission focuses on that incoherence, covering also some of the legal nonsense in the draft as it attempts to interpret what the Supreme Court has handed down (a ruling that is very regrettably now the law of the land). We have done so noting that the EHRC, presumably attempting to avoid scrutiny of its interpretations, has said that it is not eliciting views on the law itself but merely the 'clarity' of its new guidance. To hell with that. It's unclear much of the time because they don't know the law, and they need to hear that. They don't know the existing case law that protects trans people (it still stands - the Supreme Court explicitly said this) and they don't even seem to understand the April 16th ruling itself. Beyond that, their guidance is dense, long, confusing and often impossible to understand - especially for non-specialist readers. What service providers without a team of equalities lawyers and a massive budget for defending against litigation will make of it remains to be seen. After collecting responses the best approach the EHRC could adopt is to throw it all away and start again. We're sharing our response here. If you have yet to submit and still wish to, feel free to use our observations, adding legal substance to your submission as required. Be clear, the aim in this work is to attack the incoherence of the EHRC's interpretation of the Supreme Court, not the Court's ruling itself, however dreadful it was for our community. That ship has sailed, though we may see it again when it docks in Strasbourg at some point in the future. Other guidance on what to write is also available - most notably from Trans Actual, Equality Network/Scottish Trans and Mermaids. This is valuable too, and is worth using alongside ours, as it focuses on the lived experience of trans people and the ludicrous damage to our lives that the EHRC has in mind. On an individual basis, TLP contributors have also made submissions blending the personal and the legal perspectives. The consultation invites submissions from any member of the public. If you are an cisgender ally, or a legal professional with a perspective, please consider submitting your views. You have about one week left. You may find it easier to do so than many in our community have done, as we are asked once again to plead for our basic right to exist, to use facilities on which we have relied for decades, and expose ourselves to the toxic language of EHRC Law. ***********