After the UK supreme court delivered its ruling on gender recognition last month, the government verdict from Keir Starmer downwards was unanimous: this had brought welcome “clarity” to a vexed debate and everyone could move forward.
Nearly six weeks on and a growing number of Labour MPs, not to mention campaigners and human rights groups, are much less sure.
A parliamentary debate last week had a series of backbenchers questioning how the ruling that “woman” in the Equality Act refers only to a biological woman, and the subsequent advice from the Equality and Human Rights Commission (EHRC) that in the light of this, transgender people should not be allowed to use toilets of the gender they live as, squares with the rights of trans constituents.
One senior Labour MP, Meg Hillier, highlighted the plight of a person who has long lived as a woman, uses women’s changing rooms in her job with the ambulance service, and now fears being forced to tell colleagues she is transgender. The supreme court ruling, Hillier argued, “creates a real mess that needs sorting out”.
In private, a number of MPs go further. While they accept the issue is complex, involving the sometimes overlapping and competing rights and needs of trans people and those who require single-sex spaces, they are increasingly frustrated with the way it has been handled.
“I wish ministers would stop staying it brings ‘clarity’, because it doesn’t,” one MP said. “It just opens up a huge legal can of worms. And then the EHRC just put rocket boosters under the uncertainty.”
There is particular disquiet at the role of the EHRC, the equality watchdog, which is drawing up formal statutory guidance for how organisations interpret the ruling.
Its interim advice, released nine days after the supreme court decision, has faced significant criticism for, as some put it, oversimplifying the consequences of an often nuanced ruling.
Most cited as a worry is the practical issue of whether transgender people, or even those whose appearance does not conform to gender norms, will now have toilets they can use in many public spaces without being challenged.
Roz Savage, the Liberal Democrat MP who organised last week’s debate, has urged ministers to act to prevent what she called “shrinking people’s lives”. She said: “If you don’t have a clear idea how you can go to the toilet without potentially getting into a confrontational situation then you’ll just avoid the situation, which is incredibly limiting.”
For now, the government says it is waiting for the EHRC. But there appears to be limited confidence in the organisation and its chair, Kishwer Falkner, from some MPs and even government officials.
Critics, including some EHRC staff, argue that the initial advice, which appears to have been drafted by a small team around Lady Falkner, showed a leadership team not equipped to handle such a weighty task.
At an internal EHRC meeting last week, one staffer asked Falkner why the only additional legal counsel she had taken on to help with the guidance was a barrister who previously acted for one of the women’s groups that took the issue to the supreme court in the first place. Falkner, insiders say, initially refused to answer what she called an “ideology based” question.
“The EHRC’s interim advice is the main cause of the problem so far,” another Labour MP said. “It seems to have been quite poorly led by a rightwing chair appointed by Liz Truss who I don’t think is particularly competent.”
A number of MPs, mainly Labour but also Lib Dem, are making their feelings known. A group of LGBTQ+ Labour MPs has met Nia Griffith, the junior equalities minister.
Christine Jardine, the Lib Dem spokesperson for women and equalities, who has expressed significant worries about the situation, is due to meet Bridget Phillipson, who leads on equalities issues as well as being the education secretary.
A key moment is likely to be 11 June, when the EHRC’s board of commissioners, comprising Falkner and six other senior figures, give evidence to the Commons women and equalities committee, where they are expected to be pressed on the concerns.
Such is the strength of feeling on all sides that one source said there was expected to be extra security in place for the hearing, in case of protests.
Some MPs argue that ministers misjudged how the talk of clarity felt to some people.
“I’m certainly looking for the government to be stronger on this,” one Labour MP said. “It seems to have gone very quiet. I get the sense that they’re not very keen on engaging. If they’re busy reading all the legal papers, then that’s good, but if they’re just hiding, it’s not.”
One government official said that while there was an acceptance the EHRC had “made a mess” out of the interim advice, the wider worry was that the watchdog had become so mired in the transgender debate it had lost sight of other equalities issues such as disability.
“In part it’s because the last government had one interest – prosecuting culture wars and sowing divisions rather than trying to answer the big questions,” they said. “We want a grown-up debate on this.”
Asked about the decision to instruct a barrister who had acted for one of the women’s groups, an EHRC spokesperson said: “As an impartial regulator, we seek external legal advice where necessary and have robust policies in place around that process. Such advice is unbiased and is grounded wholly in an analysis of the law as it stands.”
