Liberty in legal action against equalities watchdog over gender consultation
The Supreme Court ruled in April that said the words 'woman' and 'sex' in the Equality Act 2010 refer to a biological woman and biological sex, after a challenge against the Scottish Government by campaign group For Women Scotland.
The equalities regulator published lengthy draft guidance earlier this month related to trans people's use of certain spaces including toilets and participation in sports.
The commission at that stage said it had tripled the length of time for feedback from an original proposal of two weeks, 'in light of the level of public interest, as well as representations from stakeholders in Parliament and civil society'.
But Liberty is arguing this is not long enough and 'there is no good reason why it should not be' at least 12 weeks.
The human rights organisation said it sent a pre-action letter to the EHRC earlier this week and has now submitted legal papers to the High Court and is waiting to see if a judge decides whether to proceed to a hearing based on its arguments.
The group said it is also arguing that by having a consultation period shorter than 12 weeks, the commission is 'in breach of the public sector equality duty (PSED)' to 'eliminate unlawful discrimination'.
The latest attempted legal challenge comes two weeks after campaign group the Good Law Project (GLP) said it had taken the first step of a legal challenge against the commission over the aspect of the guidance related to trans people's use of toilets, which it is arguing is 'wrong in law'.
The interim guidance said trans women 'should not be permitted to use the women's facilities' in workplaces or public-facing services like shops and hospitals, with the same applying for trans men using men's toilets, although it added that trans people 'should not be put in a position where there are no facilities for them to use'.
More detailed draft guidance earlier this month indicated a birth certificate could be requested by a sports club or hospital if there is 'genuine concern' about what biological sex a person is.
It said people can be asked to confirm their birth sex if it is 'necessary and proportionate for a service provider, those exercising public functions or an association to know an individual's birth sex to be able to discharge their legal obligations'.
It cautioned that any such question 'should be done in a sensitive way which does not cause discrimination or harassment'.
The commission added that if there is 'genuine concern about the accuracy of the response to a question about birth sex, then a birth certificate could be requested'.
The consultation on the draft guidance runs until June 30, with women and equalities minister Bridget Phillipson likely to be presented with the finished guidance for approval in July.
Akiko Hart, Liberty's director, said: 'We have taken legal action today because the consultation period set out by the EHRC is unlawful.
'As a public body, the EHRC has a legal duty to conduct a fair and lawful consultation process that allows everyone affected by a decision enough time to respond to it.
'Instead, they have tried to speed through sweeping changes to their guidance, initially giving just two weeks to people to respond to nearly 60 pages of amendments when printed out. Anything less than a minimum of 12 weeks on this issue is wholly insufficient and simply does not comply with the law.
'The EHRC's guidance will have life-changing implications for how all of us access vital services, from jobs, schooling, social clubs we might join, all the way up to how the armed forces operate. In particular, it will fundamentally change the ways in which trans people are able to safely participate in society, as well as how businesses and service providers operate.
'It is a fundamental part of our democracy that we are all given a fair opportunity to make our voices heard about any decision that impacts us. We urge the EHRC to extend the consultation period to at least 12 weeks, just as its previous consultation on this code of practice was. There is no good reason why it should not be.'
An EHRC spokesperson said: 'We are unable to comment on any legal action at this stage.'
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