EHRC withdraws interim advice following "For Women Scotland" case

The Equality and Human Rights Commission (EHRC) has withdrawn its interim guidance, which was issued following the UK Supreme Court’s ruling in April that the definition of “sex” in the Equality Act 2010 refers exclusively to biological sex. The watchdog is urging ministers to act swiftly in approving its revised statutory Code of Practice, submitted to the government in early September.

The withdrawn interim guidance had advised that trans people should avoid using single-sex facilities corresponding to their lived gender and, in some instances, could also be excluded from those matching their birth sex. Trans rights groups and several MPs warned that this approach risked excluding trans people from significant areas of public life. The Council of Europe’s Commissioner for Human Rights also cautioned UK parliamentarians about the potential for “widespread exclusion.”

In a letter to the UK Equalities Minister, Bridget Phillipson, the EHRC noted that there is currently no legally reliable guidance available to UK organisations from the Commission. It requested that the outdated 2011 services code be revoked and that the new code be laid before Parliament as soon as possible to prevent the spread of misinformation. The revised document exceeds 300 pages and, once approved, must be presented to Parliament for 40 days before gaining statutory effect.

Government sources dispute the EHRC’s version of events, stating that ministers are still awaiting the necessary materials to assess the draft, which reportedly includes an equality impact assessment. Officials have also emphasised the need for especially close scrutiny of any new Code of Practice to reduce the risk of legal challenge.

Until the new code comes into force, the EHRC advises organisations to obtain specialist legal advice when dealing with any matters relating to the implementation of the Supreme Court ruling.

If you have any questions on this matter,  please call us on 0113 207 0000