Equalities watchdog threatened with legal action after saying trans women must use men’s toilets

The equalities watchdog has been threatened with legal action after saying trans women must use men’s toilets,The Independent can reveal.

The Equalities and Human Rights Commission (EHRC)’s interim guidance was published in the wake of last month’s Supreme Court ruling on gender, which ruled trans women are not legally women under the Equalities Act.

The guidance states that trans women “should not be permitted to use the women’s facilities” in workplaces or public-facing services such as shops and hospitals.

But lawyers acting on behalf of leading UK trans rights group TransLucent have now sent a letter to the watchdog warning that the guidance “incorrectly states the legal position” of the court ruling.

The letter, seen by The Independent, criticises the body, saying it failed to consult with trans people before publishing its interim guidance, ahead of an ongoing consultation on the issue.

It demands the EHRC issue a clarification statement and criticised the commission’s chair Baroness Falkner’s description of the ruling as a "a victory for common sense” and another which stated: "If a male is allowed to use a women-only service, it isn't any longer a single-sex space."

The campaigners argue the remarks have caused “immense distress to the trans community and confusion to both service providers and employers”.

Meanwhile, lawyers Leigh Day warned: “The worry for our client is that there has not yet been any consultation with trans communities and other affected groups, and the statements from the chair and commissioner that followed the publication of the update, particularly in relation to provision of single sex spaces, suggest that their minds are closed to any other outcome.”

The letter adds: “If those are their personal views, then, while still unsatisfactory, they should have made that very clear. In any event, it is incumbent on the EHRC to provide urgent clarity so as not to undermine the fairness of the forthcoming consultation.”

It urges the EHRC to respond by May 19 and confirm whether it plans to issue clarification.

Steph Richards, CEO of TransLucent, warned that the watchdog “appears to have ignored the fact that trans people are still protected under the Equality Act and, as such, can only be legally discriminated against in circumstances when it is a ‘proportionate means of achieving a legitimate aim’.”

It comes amid mounting concern over the impact of the EHRC’s guidance, with Labour MP Nadia Whittome telling The Independent it was a “devastating blow for trans people and their rights”.

“This guidance is not statutory but it indicates what the draft statutory guidance is likely to contain. It is essential that the government rejects it”, the MP for Nottingham East said.

“The Equality and Human Rights Commission should be safeguarding trans people’s rights at a time when they are being threatened. Sadly, this vital institution has fallen victim to successful attempts by the previous Conservative government to co-opt it in line with its agenda, undermining its independence and neutrality.”

Meanwhile, Carla Denyer, co-leader of the Green Party, said the interim guidance was “rushed and ill-thought-through, and was clearly drawn up without consulting trans people on their experiences and needs”.

“I’m worried that the guidance could act as a bigot’s charter, emboldening people to harass and victimise trans people in public places, and the Green Party has called for it to be withdrawn until something more considered can be produced.”

jane fae, director of fellow trans rights group TransActual, told The Independent the organisation is also “watching very carefully and are ready to take legal action should it be necessary”.

“We welcome this analysis from TransLucent. It is very clear that in her intemperate rush to self publicity, the head of the EHRC Baroness Falkner did not take the time to consult with groups affected and as a result she has caused alarm, distress and further encouraged vigilantism against trans people.

“We echo TransLucent’s conclusion that her stance is very concerning and would question whether she is a fit person to be in charge of the equalities commission”, she said.

The letter was sent to the EHRC on Monday, The Independent understands.

A UK government spokesperson said: “The EHRC is an independent regulator, and we will review their Code of Practice and work with them to ensure it provides the certainty and clarity service providers and businesses need, in line with the Supreme Court ruling.”

The EHRC and Baroness Falkner have been approached for comment.