EHRC must reflect the law when issuing guidance on single-sex spaces

But it’s wrong to suggest that the Equality and Human Rights Commission (EHRC) is “unfit for purpose” just because it sought to reflect For Women Scotland v Scottish Ministers. Its task is to explain the Equality Act. It cannot treat the gender reassignment protected characteristic as though it overrides sex, sexual orientation, disability or belief.

The article says the new EHRC Code represents the “destruction” of equality for trans-identified people. But the commission didn’t invent the legal position it has to explain. The Supreme Court held that “sex”, “man” and “woman” in the Equality Act refer to biological sex. That may be unwelcome to those who prefer “gender identity” as an organising principle, but it is the authoritative interpretation of the Act. The EHRC would fail in its statutory duty if it drafted guidance as though the judgment hadn’t happened.

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The article says the code requires trans-identified people to use “third spaces”, including disabled facilities, rather than toilets and changing rooms matching their “true gender”.

The issue isn’t whether trans-identified people should be humiliated, outed or excluded from ordinary life. They shouldn’t be. It is whether a single-sex service can remain single-sex if members of the opposite biological sex are admitted. After the Supreme Court’s ruling, that cannot be answered simply by invoking identity.

Nor is it enough to say this is “clearly” incompatible with Article 8 of the European Convention on Human Rights, the right to respect for private and family life. Article 8 isn’t an absolute right to access sex-specific facilities according to gender identity. Women and girls also have privacy and dignity rights. Disabled people have legitimate interests in accessible facilities. Lesbian women and gay men have interests where same-sex association is concerned. Equality law requires these interests to be considered together, not ranked by political desire.

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Gomersall relies on Goodwin v United Kingdom. That case required the UK to provide legal recognition for transsexual people, particularly in relation to private life and marriage. It led to the Gender Recognition Act (GRA). It didn’t decide that later statutes dealing with services, associations, changing rooms, prisons, sport, safeguarding or sexual orientation must treat acquired gender as overriding biological sex.

The claim that the GRA has been made “largely meaningless” is overstated. A gender recognition certificate still provides formal legal recognition of acquired gender for purposes outwith the Equality Act. What the Supreme Court held is that the GRA doesn’t silently rewrite “sex”, “man” and “woman” for Equality Act purposes.

Nor is the position simply worse than before 2004. Before then there was no general mechanism for legal recognition of acquired gender. What has changed is that the courts have clarified that a certificate does not convert a male person into a woman, or a female person into a man, for every Equality Act purpose.

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The article also says that the Supreme Court failed to accept “balanced evidence”. But statutory interpretation isn’t a public consultation exercise on a proposed policy. The court’s task was to construe parliament’s words, considering the Equality Act, the GRA, and the coherence of statute.

The UK Parliament may amend the Equality Act to reverse the judgment. One would expect it to do so openly, recognising that such a change would affect women’s services, lesbian and gay associations, sport, data collection, safeguarding, prisons and privacy. That would not be a minor correction, but a fundamental reordering of sex-based rights.

Equality is not destroyed when sex is recognised as real. It is damaged when one protected characteristic is made overriding and the others treated as though they’re obstacles. Women’s rights, homosexual rights and trans-identified people’s rights all deserve very serious treatment. That cannot be achieved while some, not least some organisations funded by the Scottish Government, continue to bury their heads in the sand and act as though sex matters less in law.

Brian Forsyth
Edinburgh

ANGUS Ferguson (Letters, May 26) is right. It’s been a wee while since I qualified for the cruel joke of the 25p increase, but there is a way to beat HMRC at this game.

You will not notice this generous increase since it would probably buy you two slices of a small loaf, so do what I did.

I have a monthly standing order in support of a deserving charity. I increased my donation by one pound, thus ensuring that, as I am a taxpayer, HMRC has to give them another 25p on top of the pound.

It may be a flea bite, but fleas are irritating and sometimes carry the plague.

Les Hunter
Lanark