The equality regulatory body has defended the interim update it provided on the practical implications the Supreme Court ruling on the definition sex. It said that the issue was one of balancing “clarity and pace”.
Baroness Kishwar Fakner, Chairwoman of the Equality and Human Rights Commission spoke to the Women and Equalities Committee this week. She stressed that the update is not guidance as some MPs and EHRC Chief Executive John Kirkpatrick referred to it. It’s an update.
The EHRC held a consultation last month on updating its code of conduct in light of the Supreme Court’s ruling that the term sex used in the Equality Act of 2010 referred to biological sex. A woman is a biological woman and a male is a bio-male.
David Burton-Sampson, Labour MP, asked at the WEC’s meeting with EHRC leadership whether the EHRC had “overreached” in its interpretations of the Supreme Court judgement, as some transgender groups have accused.
Falkner replied that “our interim update had to be very short.” “We were asked for an explanation and we only highlighted the headlines of the Supreme Court judgment.”
She said: “When you read a summary, it doesn’t give the full picture. I would advise people to judge us on the final consultation document, as that will be a more definitive statement of what we found, and the result of an actual conversation with groups like TransActual.
We are listening. We have meetings scheduled with these groups and are listening to their experiences on the ground. “We will certainly keep that in mind.”
She explained that a banner was on the EHRC website explaining that duty bearers should seek their own legal counsel. Burton-Simpson questioned: “If you advised people to seek legal advice, then why did you release an interim update that created more confusion?”
Falkner replied by saying that the EHRC is empowered under the Equality Act, to inform and advise people on the meaning of the enactments within the Act. She added, “It’s our duty to do this and we thought it was the right thing to do.”
“In reality, we wouldn’t have done our job had we waited for seven months to see what the Parliament would do when the code of conduct, which is expected in late autumn, was released. Then, all of you would have questioned me about what we had been doing for so long.
Specific toilets
Kirith Entwistle asked Labour MP: “How realistic is it to prevent someone from using a particular toilet?”
Kirkpatrick responded: “What the laws oblige service providers, for example, as well as employers in some cases, to do is provide facilities in the right type in different ways. There are different rules in the workplace. Employers are guided by certain laws, while service providers follow others.
The law requires that the facilities are used in a way that is compliant, and the policies are designed to meet the goals of the organization. This includes ensuring that the facilities are safe and dignified for women.
“Those policies are what really matter.” Locally, the way that they enforce these policies will differ.
In some cases, you will find that local agreements are the best way to ensure that people can access the facilities they are entitled to, that these facilities are performing the tasks they need to and are in compliance with the law.
Falkner continued: “The decision to provide a separate or single sex facility is the responsibility of a provider of services. However, proportionality must be at the core of any decision they make if they want to be seen as having acted legally. They must demonstrate that they are using a proportionate method to achieve a legitimate goal.
“Ofcourse, some service providers may decide not to offer single-sex areas, and may discover that they are subject to indirect discrimination claims by failing to respect women’s dignity or privacy, for instance. It cuts both ways. “They have to be careful to balance different interests.”
Trans rights
Catherine Fookes (Labour MP) challenged Falkner about her statement that trans people have not lost their rights. She replied: “But, they have. They have lost their right to use the bathroom of their choosing. People in my Monmouthshire constituency have told me that transgender people who have not been ‘outed’ have lost the right to use their preferred toilet.
“Trans women, for example, who have been trans since 30 years but haven’t told their workplace they are trans women – they don’t want to tell their job. What rights have they lost? How will they continue to work in the business they have worked in?
Falkner responded: “We are in danger of shooting the messenger.” The Supreme Court delivered the judgement, so I suggest that you challenge the five justices before you on how they reached their decisions.
She continued: “If we go back to 1975 and the Sex Discrimination Act, the Equality Act is building on it – [it] always had exceptions for single-sex areas and separate spaces. They have always been there.
“Because of our realization that there were a number of situations where rights and obligations may conflict, we have published updated guidelines since April 2022, to explain that the separate and single-sex exceptions have always been a part of law and that people are only allowed to use those facilities that match their biology.
“We repeated that in our consultation on the full code last year, which we had already discussed for 12 weeks between November [2024] to January [2025] and did not receive any specific reaction.”
We are helping people navigate the law by providing examples. “We believe that transgender people should always have access to facilities.”
The Supreme Court’s judgment is ambiguous
The EHRC Interim Update published nine days following the Supreme Court’s April judgment states that:
The article continues: “Under certain circumstances, the law allows trans women to not use men’s restrooms, while trans men (biological man)[sic] are not allowed to use women’s restrooms.
Fookes asked, “What does this mean in practice?”
Falkner responded: “This was one of the ambiguous implications from the Supreme Court’s judgment. This is not meant to be an exhaustive analysis. In the code, we will provide more detailed guidance about what to do under these circumstances. “We are aware that it’s a little ambiguous. We are looking into that very closely and expect to have addressed that when we release our finalised code.”
Do you need guidance?
The EHRC interim report was a source of confusion throughout the meeting. Was it guidance?
Christine Jardine said, “What I’m wondering is how this interim update complies with the requirement in Goodwin vs United Kingdom, 2002, that trans people shouldn’t be left in gender limbo?” The interim judgment seems to say that you can’t do both.
Falkner responded: “First of all, I’m a little confused about what you mean when you say interim judgment. The Supreme Court judgment was a final judgement.
Jardine replied: “Sorry. I meant interim guidance.” I beg your pardon.”
Falkner replied: “That’s not in interim guidance.” This is not guidance. We published 11 pieces in the past year. “We call guidance what we publish when we do.
Jardine: “My argument is that interim guidance is not guiding: It lacks clarity, leaves people in limbo and causes a lot of anxiety, as they don’t know what the Act means to them. How do you see us progressing until that is addressed, the anxiety has been removed and some clarity created? “Does that mean we’re back in Parliament and possibly new legislation?”
Falkner outlined the chronology of events. She said that they had to find a balance of accuracy, clarity and speed.
Advice that is misleading
Rosie Duffield is the independent MP of Canterbury. She said that certain sectors still take advice from organizations such as Stonewall. Would you prefer that some public organizations and charities take more advice and guidance from you than from organisations who could be seen as misleading them?
Kirkpatrick responded that the EHRC is keen to put its best interpretation of law in the public domain, so that people can make use of it.
The draft is not a final version of the law, but our best interpretation. If it’s not clear to people or doesn’t provide the right examples, or its examples aren’t helpful, the most important responses we want to hear are those who say “It would be clearer” if the draft covered this topic, or “It would be clearer” if the examples were more specific.
“That’s the point of consultation. We are keen to receive responses that make things clearer and more useful for everyone.
“I would like to answer your question by saying, “Yes, I hope so.” All duty holders have an obligation to follow the law. We have attempted to give them some guidance as to what this means in the practical situations that they face.
He continued: “I’d like to believe that they would follow the advice we have now made available for consultation. It is the best information currently available.” I would be disappointed if, after all this, people still used and relied on our old guidance that was no longer valid. We’d prefer they use what we have, and at the same, comment on it, and tell us if it’s not as clear as they want it to be.”
In a email that was seen by The Guardian yesterday, organisations such as Refuge, UK’s biggest charity for women suffering domestic abuse, and mental health charity Mind urged the EHRC not to limit the consultation period to 12 weeks because it could lead to “rushed” guidelines.
A High Court judge refused Liberty’s attempt last week to launch a legal review in order to extend consultations to 12 weeks, although the human-rights charity said that it would appeal the decision.
The EHRC Consultation closes 30 June.
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