Supreme Court gender ruling risks leaving trans people in ‘intermediate zone’ and could breach ECHR, UK warned
The government’s treatment of transgender people in the UK could breach the European Convention on Human Rights, a human rights expert has warned.
Michael O’Flaherty, the Council of Europe’s commissioner for human rights, said following the Supreme Court’s decision on transgender people that the new guidance should not leave them in a “buffer zone” where they are “one gender and not the other”.
In a letter to Sarah Owen, chair of parliament’s women and equalities committee, and David Alton, chair of the joint committee on human rights, Mr O’Flaherty said lawmakers in the UK viewed “the human rights of different groups as a zero-sum game”.
“This has contributed to narratives that are based on prejudice against trans people and portray protecting their human rights as a de facto threat to the rights of others,” she said.
He added that the approach risks “drawing certain inferences from the UK Supreme Court decision that could lead to widespread exclusion of transgender people from many public spaces”.
“This could seriously infringe on their ability to participate fully and equally in society,” he added.
Mr O’Flaherty said transgender people could be forced to “habitually ‘out’ themselves in public to access services under the new guidelines, which could be a potential breach of their right to privacy under Article 8 of the ECHR.”
He added: “Beyond privacy concerns, being forced to reveal the sex assigned at birth can also significantly increase people’s vulnerability to harassment, abuse and even violence.”
The debate over transgender rights should not overshadow efforts to stop violence against women and girls and increase gender equality, the watchdog said. But he said the current debate is too focused on restricting the human rights and freedoms of transgender people.
The Equality and Human Rights Commission (EHRC) has drafted new guidance for companies and public bodies to follow after the Supreme Court ruled earlier this year that trans women are not legally women under the Equality Act (2010).
Draft guidance, submitted for consultation over the summer, warns that if a service is “provided only to women and trans women, or only to men and trans men, it will not be a separate-sex or single-sex service within the meaning of the Equality Act 2010.”
Following consultations over the summer, the EHRC has submitted updated codes of practice for services, public functions and associations to the equalities minister for approval. But in theory, women and equalities minister Bridget Phillipson could reject the draft and ask the EHRC to re-draft it.
Schools, hospitals, leisure centers and cinemas are expected to be told to ban trans women from using single-sex spaces such as toilets and changing rooms.
Hundreds of organizations have written to the government to warn that the guidance is “unworkable” and will “cause significant economic harm”.
In a letter I saw recently IndependentThe firms, including Ben and Jerry’s and Lush, said: “The proposals made in the EHRC’s draft Code of Practice under the Equality Act will have serious and far-reaching consequences for UK businesses, our employees and our customers.
“Any final legislation like this bill will tell organizations that we must adopt practices that are incompatible with modern business values, create unworkable operational challenges, and cause serious economic harm.”
The Prime Minister’s official spokesman said: “We are clear that there are laws in place to protect transgender people from discrimination and harassment.
“We proudly support a strong legal framework. Transgender people continue to be protected on the basis of gender reassignment, with characteristics rewritten in the Equality Act. This was true before the decision, and the Supreme Court has underlined this. “We have never supported personal identity.
“We have a process in place when it comes to changing someone’s legal gender through that process.”
Following his visit to the UK, Mr O’Flaherty also wrote to Home Secretary Shabana Mahmood to warn that the government’s decision to ban Palestine Action as a terrorist group, as well as the planned crackdown on protesters wearing face masks, could breach the Convention.
