EHRC warns SNP ministers over sex definition ruling

The Herald Scotland

5 days ago

She warned that the current 'climate of uncertainty and widespread misinformation serves nobody'.
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In April, the UK's highest court ruled unanimously that a Gender Recognition Certificate (GRC) does not alter a person's sex for the purposes of the Equality Act.
The judgment clarified that the terms 'man' and 'woman' in the legislation refer to biological sex, not acquired gender.
That ruling meant every organisation in the country needed to review their equality policies.
The EHRC issued interim guidance in May related to trans people's use of single-sex facilities. It also launched a consultation on changes to parts of its code of practice for services, public functions and associations, which closed yesterday. The updated code is due to be published later this year.
While First Minister John Swinney initially welcomed the 'clarity' provided by the ruling, the Scottish Government has repeatedly said it is waiting for this further guidance before issuing new advice of its own to Scotland's public sector — including prisons, schools and the NHS.
Dr Lesley Sawers said the law has been in effect since the ruling (Jamie Simpson/NQ)Dr Sawers said the Government should already be following the law: 'We appreciate there is an urgent need for clarity, as a climate of uncertainty and widespread misinformation serves nobody – particularly those with protected characteristics.
'But as we emphasised to the Cabinet Secretary for Social Justice and the Cabinet Secretary for Health and Social Care when we met with them on June 10, duty-bearers are responsible for their own compliance with the Equality Act.
'Our Code of Practice will help them to navigate this complex area of law, but it will not provide bespoke examples of every circumstance they might encounter.
'The law, as set out in the Supreme Court's clear judgment, has been in effect since it was handed down on April 16.
'Service providers and public bodies should in any event be following the law while they wait for our statutory guidance, as it will not cover every eventuality.
'We have urged relevant bodies to seek their own legal advice where necessary, to inform decisions about what changes they need to make now to their existing policies and practices.
'Public sector bodies have particular duties to assess how their policies and practices affect people with protected characteristics, and we reminded the Cabinet Secretaries that Scottish ministers have a responsibility to ensure their adherence to the Public Sector Equality Duty.'
The intervention follows a row over claims the Scottish Government 'misrepresented' private conversations with the EHRC.
Last month, senior civil servants told For Women Scotland (FWS) that the Commission had advised ministers to wait for the final Code of Practice before making changes and to 'not do anything in advance of that'.
The comments earned a stinging rebuke from Baroness Kishwer Falkner, the Chair of the EHRC, who told FWS the Commission had made it 'clear' to civil servants that public bodies should not wait for updated guidance before acting on the judgment.
The peer said she was 'very concerned that our conversations with officials appear to have been misrepresented'.
When campaigners wrote to the Scottish Government's Permanent Secretary Joe Griffin calling for a full investigation, saying it was 'extremely concerning that statements made by a senior government official to a third party about EHRC advice have been directly contested by the regulatory body itself', he replied to say his team would 'revert in due course' with a fuller response.
He later said the Government accepted the Supreme Court's judgment and 'acknowledges the EHRC statement that 'duty-bearers should not wait for our statutory Code of Practice for Services, Public Functions and Associations to be in place to review their policies to ensure they are complying with the law as now settled by the Supreme Court'.'
However, FWS questioned the use of the word 'review', pointing out that the EHRC had told them duty-bearers 'should not wait for our guidance but should be seeking to update their policies and practices in the light of the new understanding of the law, taking their own specialist legal advice where necessary'.
The Scottish Government told The Herald the Permanent Secretary 'was quoting from correspondence between the EHRC and the Scottish Government'.
When The Herald then approached the EHRC, the regulator released the statement from Dr Sawers.
Trina Budge from FWS welcomed the EHRC's interventionTrina Budge from FWS said: 'We, along with the equalities regulator it seems, are fast running out of patience with the Scottish Government's incompetence and refusal to comply with the law.
'Once again, it has been made abundantly clear, including to multiple Cabinet Secretaries, that they must take action now to update policies in line with the April 16 court ruling.
'Women fought hard for our rights to be respected and this extended period of bickering and dithering by the Government is more akin to a public toddler tantrum than a sign of responsible legislators. It is nothing short of shameful.
'They need to step up and sort it out sharpish before vulnerable women and girls suffer any more harm.'
Scottish Conservative Shadow Minister for Equalities, Tess White said: 'This is effectively telling SNP ministers, no more excuses.
'The Supreme Court's verdict was delivered over two months ago yet John Swinney and his colleagues are still dragging their heels on telling public bodies in Scotland to comply with the law.
'It is time for them to do the right thing and show some common-sense, rather than thinking they can continue kicking this issue into the long grass.
'The latest intervention from the EHRC would not have been needed if SNP ministers had acted immediately in light of the ruling in April and they must now finally act upon what they are ordering them to do.'
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The row comes as Sir Keir Starmer said hospitals and government departments needed to implement the Supreme Court ruling 'as soon as possible'.
The Prime Minister told reporters he 'accepted the ruling; welcomed the ruling, and everything else flows from that as far as I'm concerned'.
He said: 'All guidance of whatever kind needs to be consistent with the ruling and we need to get to that position as soon as possible.'
Maya Forstater, the chief executive of Sex Matters, said: 'This is an important intervention from the Prime Minister, given the huge number of public bodies failing to implement the Supreme Court judgment and operating outside the law.
'Political leadership is essential if women whose rights are being stolen are not to be forced to turn to the courts, where public bodies will end up losing, at great expense to taxpayers.
'It's no coincidence that the private sector has been faster to bring their policies in line with the judgment, recognising what is at stake for the bottom line. Meanwhile most NHS, university and civil service leaders are sitting on their hands.
'The law is clear and there is no need to wait for further guidance from the EHRC or anyone else. Unlike the small businesses and services for which the regulator's guidance is intended, public sector organisations have access to specialist legal advice, as well as extra statutory obligations under the public sector equality duty.'
The Scottish Government has been approached for comment.