Human rights group Liberty has lost a bid to bring legal action against the equalities watchdog over its consultation in the wake of the Supreme Court’s ruling on gender.
The UK’s highest court ruled in April that the words “woman” and “sex” in the Equality Act 2010 refer to a biological woman and biological sex, after a challenge against the Scottish Government by campaign group For Women Scotland.
The Equality and Human Rights Commission (EHRC) is consulting on proposed amendments to part of its guidance, after interim guidance was published last month related to trans people’s use of certain spaces including toilets and participation in sports following the judgment.
The commission increased the length of time for feedback from an original proposal of two weeks to six weeks, but campaign group Liberty said that it should be at least 12 weeks, claiming the current period would be “wholly insufficient” and unlawful.
Liberty made a bid to bring a legal challenge over the length of the consultation, but in a decision on Friday afternoon Mr Justice Swift said it was not arguable.
In his ruling, Mr Justice Swift said: “There is no 12-week rule. The requirements of fairness are measured in specifics and context is important.”
“I am not satisfied that it is arguable that the six-week consultation period that the EHRC has chosen to use is unfair,” he added.
At the hearing on Friday, Sarah Hannett KC, for Liberty, said in written submissions that the Supreme Court’s decision “has altered the landscape radically and suddenly” and potentially changes the way trans people access single-sex spaces and services.
The barrister said this included some businesses preventing trans women from using female toilets and trans men from using male toilets, as well as British Transport Police updating its policy on strip searches, which have caused “understandable distress to trans people”.
Ms Hannett said a six-week consultation period would be unlawful because the EHRC has not given “sufficient time” for consultees to give “intelligent consideration and an intelligent response”.
She told the London court: “There is a desire amongst the bigger trans organisations to assist the smaller trans organisations in responding… That is something that is going to take some time.”
Later in her written submissions, the barrister described the trans community as “particularly vulnerable and currently subject to intense scrutiny and frequent harassment”.
Ms Hannett added: “There is evidence of distrust of both consultation processes and the commission within the community.”
Lawyers for the EHRC said the legal challenge should not go ahead and that six weeks was “adequate”.
James Goudie KC, for the commission, told the hearing there is “no magic at all in 12 weeks”.
He said in written submissions: “Guidance consistent with the Supreme Court’s decision has become urgently needed. The law as declared by the Supreme Court is not to come in at some future point.
“It applies now, and has been applying for some time.”
The barrister later said that misinformation had been spreading about the judgment, adding that it was “stoking what was already an often heated and divisive debate about gender in society”.
He continued: “The longer it takes for EHRC to issue final guidance in the form of the code, the greater the opportunity for misinformation and disinformation to take hold, to the detriment of persons with different protected characteristics.”
Mr Goudie also said that there was a previous 12-week consultation on the guidance at large starting in October 2024.
Following the ruling, EHRC chairwoman Baroness Kishwer Falkner said the commission’s approach “has been fair and appropriate throughout”.
She continued: “Our six-week consultation period represents a balance between gathering comprehensive stakeholder input and addressing the urgent need for clarity. We’re particularly encouraged by the thousands of consultation responses already received and look forward to further meaningful engagement through the rest of the process.
“The current climate of legal uncertainty and widespread misinformation serves nobody – particularly those with protected characteristics who rightly expect clarity about their rights. A swift resolution to this uncertainty will benefit everyone, including trans people.”
