The equalities watchdog has withdrawn interim advice on how institutions should respond to the supreme court ruling on transgender rights, which some campaign groups said could effectively exclude trans people from many public spaces.
The Equality and Human Rights Commission (EHRC) said the advice, published in April, shortly after that month’s supreme court ruling that the legal definition of a woman is based on biological sex only, had been taken down from its website.
In its place, the EHRC says organisations seeking to understand how to implement the ruling should “take specialist legal advice” ahead of the approval by parliament of the watchdog’s statutory guidance, submitted to ministers in early September.
Some Labour MPs joined transgender groups in expressing alarm at the EHRC’s interim advice, which said the supreme court ruling meant transgender people should not be allowed to use toilets meant for the gender they live as, and that in some cases they could not use toilets consistent with their birth sex.
This would, rights groups warned, in effect exclude transgender people from much of the public realm. The Council of Europe’s commissioner for human rights has since written to UK MPs warning against the possible “widespread exclusion of trans people”.
The Good Law Project campaign, which has been supporting several trans and intersex people in challenging the interim advice in the courts, said one of the cases had been due to be heard next month.
The EHRC’s announcement that the advice had been withdrawn came at the end of a wider statement in which the watchdog took the unusual step of publicly urging ministers to “act at speed” in approving the statutory guidance.
In the statement, the EHRC said it had written to Bridget Phillipson, the equalities minister, pointing out it had sent the guidance six weeks ago, and warning that as things stood, there was no legally accurate advice available.
However, the Guardian understands that the delay is a result of the EHRC not yet having sent the government necessary information, including an equalities impact assessment.
Officials say that without this, it is not possible to properly assess the complex, 300-plus-page guidance, which must be approved by Phillipson and then laid before parliament for 40 days.
There is also concern among some officials that the guidance will need especially close scrutiny, in part to avoid the risk of legal challenge.
There is speculation that the government hopes to finalise the guidance after the EHRC’s outgoing chair, Kishwer Falkner, who was appointed under the Conservatives, finishes her term at the end of next month.
But in a statement, Falkner urged ministers to act swiftly, saying the watchdog had been told that some organisations were continuing to abide by the previous guidance, “therefore allowing practices inconsistent with the law to persist”.
She said: “The updated code ought to be brought into force as soon as possible. How quickly this happens is now in the government’s hands. We urge them to act at speed.”
A Whitehall source said: “Unfortunately this looks like the EHRC deflecting – they still haven’t sent ministers the information they’ve requested in order to assess the draft code. The EHRC should be cracking on with their job, not giving lectures on timing while government still awaits their material.”
