EHRC bows to pressure and extends gender consultation

The Equality and Human Rights Commission has extended its planned consultation on an updated code of practice for services, public functions and associations - following the Supreme Court's biological sex judgment - from two to six weeks.

It follows pressure from the Women and Equalities Committee, trans lobby groups and others criticising its plan for only a fortnight's consultation.

In a statement, the EHRC said: "In light of the level of public interest, as well as representations from stakeholders in Parliament and civil society, the consultation period has been extended."

It said it now aims to launch the consultation on Monday (19 May) and close it on 30 June 2025.

On 16 April, in the landmark case For Women Scotland (FWS) vs Scottish Ministers, the Supreme Court ruled that for the purposes of the Equality Act 2010, "sex" and "women" refer to biological sex and biological women.

Nine days later, the EHRC published an interim update on the practical implications of the FWS case. It said: "We know that many people have questions about the judgment and what it means for them. Our updated guidance will provide further clarity. While this work is ongoing, this update is intended to highlight the main consequences of the judgment."

For workplaces and services that are open to the public, the EHRC said trans women (biological men) should not be permitted to use the women's facilities and trans men (biological women) should not be permitted to use the men's facilities.

However, "in some circumstances", the law also allows trans women (biological men) not to be permitted to use the men's facilities, and trans men (biological women) not to be permitted to use the women's facilities.

The interim update was described as "clearly rushed and ill-thought-out" by Carla Denyer, co-leader of the Green Party, which called for it to be withdrawn.

Committee letter

Last week, Sarah Owen, chair of the Women and Equalities Committee of MPs, wrote to Baroness Falkner, chairwoman of the EHRC, questioning the reasoning behind its decision to hold a two-week consultation period.

The letter said: "As a committee, we feel that at least six weeks minimum would be more appropriate to allow all stakeholders, including individuals, charities and disability groups, businesses, health providers and local authorities to contribute."

It also asked what steps the EHRC will be taking to ensure that the code of practice is supportive of the rights of all people (as noted by the Supreme Court judgment) and whether there may be legal implications beyond the scope of the issues considered by the Supreme Court.

'Settled view'

This week, transgender lobby group TransLucent said it believed a two-week consultation was too short and that it had begun the process of taking legal action against the EHRC.

"We have made this decision because we believe that the commission is acting unlawfully in their response to last month's Supreme Court judgement on the status of trans people under the Equality Act," it said.

"The EHRC have a legal duty to enter this process with an open mind, and not with a settled view on how they will update their guidance. We believe that the EHRC does not have an open mind and they have come to a settled view on the consequences of this judgment because two senior EHRC personnel have made public statements expressing a seemingly settled view."

The EHRC has said the consultation will focus on sections of the code of practice that required updating following the Supreme Court's judgment, adding that a draft of the full code of practice was consulted on between October and and January.

In a statement yesterday, it said: "The Supreme Court made the legal position on the definition of sex clear, so the EHRC is not seeking views on those legal aspects."

Q&A sessions

While the consultation is running, the EHRC said it will hold Q&A sessions with stakeholders representing affected protected characteristic groups.

It said: "These meetings aim to answer questions on the EHRC's understanding of the Supreme Court's judgment, the consultation process, where views are being sought and what can and cannot be changed in the draft code of practice

"Participants will still need to submit a consultation response. The EHRC will also meet with governments from across Britain and hold informative briefings for Parliamentarians."

The EHRC will review responses received as part of the consultation and make necessary amendments to the code. It will then be submitted to Bridget Philipson, the women and equalities minister, for approval and laying in Parliament.

The previous consultation timetable had been scheduled to submit an updated code for ministerial approval by the end of June, so that it could be laid before Parliament before the summer recess (22 July to 1 September).

Now that the consultation ends one month later, it remains to be seen whether that timetable can be met. The EHRC has been approached for comment.