A HUMAN rights watchdog has warned that rights are at risk over “inaccurate interpretation and implementation” of the Supreme Court’s ruling on sex.
The court ruled in April that the definition of “woman” under the Equality Act 2010 refers to biological sex as opposed to gender, in a case brought against Scottish Ministers by gender-critical campaign group For Women Scotland.
Four months after the judgment, the Scottish Human Rights Commission (SHRC) has issued a statement, warning that implementations of the ruling could put the rights of both transgender and non-transgender individuals at risk.
“The Scottish Human Rights Commission has taken time to consider the implications of the recent Supreme Court ruling in the case 'For Women Scotland Ltd vs The Scottish Ministers' in the context of the human rights framework”, the statement reads.
“While we do not believe that the judgment itself directly violates human rights, inaccurate interpretation and implementation of the ruling could put rights at risk.”
It continues to acknowledge fears over how individuals’ rights will be “protected and upheld” following the judgment.
“We are concerned that basic rights to dignity and respect for all may be undermined. It is our view that the judgment itself does not directly violate any human rights”, the SHRC said.
“However, the interpretation of this judgment and the resulting changes in policy, public discourse and the behaviour of duty-bearers are highly likely to have an impact on the rights of people in Scotland.”
The SHRC has powers to recommend changes to law, policy and practice and primarily deals with raising “awareness, understanding and respect for all human rights in Scotland”.
It has advised the Scottish Government to “immediately conduct an audit” of all policies relating to the Supreme Court judgment and to do so with a “human rights-based approach” to avoid regressing on the protection of rights.
The watchdog flagged concerns over the impact of the ruling on policies covered by the Equality Act, including police search powers, access to domestic violence shelters and single-sex accommodation in both prisons and healthcare facilities.
It also noted that the Equality Act does not “exist in isolation”, referring to the fact that any policies formed under the Act must also fall in line with the Human Rights Act 1998.
“Taking a narrow lens to compliance with only one piece of legislation may risk non-compliance with human rights standards”, the statement says.
Following discussions between the SHRC, legal experts and academics, the watchdog says “practical” and “context-based” policies should be put in place to protect the rights of both trans and non-trans individuals.
The statement continues: “Without clear policies, decisions about, for example, how and when to accommodate individuals in services cannot be made consistently or with sufficient consideration of the issues and legal obligations at play.
“Nor can rights-holders expect to have a clear understanding of how their rights should be protected, or how complaints arising from practice should be addressed. This is a risk both to rights and to the ability of individuals to seek appropriate redress.”
The SCHR also expressed the need for the human rights of different groups to not be seen as “mutually exclusive or a zero-sum game”.
“Human rights are about more than the letter of the law; they should uphold dignity and humanity”, it said.
"Trans people are effectively being removed from spaces and services that they have used for decades. Their rights to access such places and go about their daily lives with dignity are being breached.
“Some of the most right-wing, reactionary and bigoted forces in our country have celebrated while trans people have found their worlds becoming smaller and more hostile.
“Trans people have always been with us. They are our friends and neighbours, our children and partners. They know their own minds. They cannot be erased and nor can their experiences. I will always stand in solidarity with trans people.”
