“CARELESS” legal guidance issued by the UK’s human rights watchdog in response to the Supreme Court’s sex ruling should be withdrawn, a former solicitor for the commission has said.
David Faith, a legal counsel who previously worked as a solicitor at the Equality and Human Rights Commission (EHRC), issued a statement on social media after the body published guidance on single-sex spaces late on Friday evening.
The statement, which the EHRC said was only “interim guidance”, made clear the Supreme Court’s ruling that sex is biological under the 2010 Equality Act and that a trans person obtaining a gender recognition certificate has no influence on this.
The EHRC said the ruling meant that workplaces had a legal obligation to provide single-sex toilets and that public spaces did not – but offering only mixed-sex spaces could be discrimination against women.
In workplaces, it said that trans men and women should not be allowed to use spaces meant for their acquired gender – but also that they could be barred from using spaces which align with their biological sex. However, it added: “Trans people should not be put in a position where there are no facilities for them to use.”
The guidance has come in for criticism including from STUC general secretary Roz Foyer, who told the BBC it was “extremely problematic”. "We have a ruling here that's basically saying trans women can no longer use female-only facilities,” she said.
"Does that mean trans men can no longer use male-only facilities? Will they be forced to use female facilities? Will trans women be forced to use men's facilities?"
Faith said that the “rushed and careless” guidance should be withdrawn.
Writing on LinkedIn, the legal counsel said: “I used to work at the EHRC. It was my dream job until it wasn't. Now it seems our actual national human rights institution is trying to introduce a bathroom bill, just without the messy inconvenience of passing any laws.
“This ‘guidance’ has clearly been rushed out with insufficient care. It massively over extends the recent Supreme Court judgement, claiming it means something that it simply does not.
“It completely overlooks trans people's protection from indirect discrimination and their right to private life. It encourages employers and service providers to do the same, and thereby take unnecessary and ill-advised legal risks.
“It provides no practical advice on how the policies it recommends could be managed or enforced without leading to unlawful harassment. It implies that, without a special exception, providing separate toilets for women is inherently discriminatory to men.
“Ultimately, this ‘guidance’ shames our country and our standing as a leader in human rights.”
Faith’s post was shared by Vonnie Sandlan, the head of office for Scottish Labour MP Graeme Downie.
Sandlan, another former EHRC employee, wrote of Faith’s statement: “I also used to work at EHRC. Like David, getting to work on communications and public affairs for what I understood to be an incredible organisation was my dream job – until it wasn’t any more.
“Please do read David’s post about the hastily-issued, non-statutory guidance that has been published this weekend.”
The EHRC has been approached for comment.
