Human rights watchdog facing legal action amid row over trans rights

The human rights regulator is facing a legal challenge over its status as an independent group amid a row over trans rights.

Last month the Equality and Human Rights Commission (EHRC) warned the Scottish Government that plans to reform gender recognition laws in Scotland need “more detailed consideration”.

Now LGBT charities want the UN to revoke the organisation's status as an independent group.

LGBT charity Stonewall, backed by the Good Law Project, has drawn up a submission to the Global Alliance of National Human Rights Institutions, calling for the EHRC to lose its "A rating".

Losing its status would prevent the EHRC from making representations at the UN Human Rights Council, or its committees on human rights.

In a statement, Stonewall said: “The submission is prompted by the EHRC’s recent, and significant, change in stance on the issue of trans rights. Their recent statements on GRA reform in Scotland, and the conversion therapy ban in England and Wales, not only reverse their long-held positions, but are in stark contrast to international human rights standards.

“The EHRC’s stance seeks to strip trans people of legal protections, and pose a grave threat to the ability of trans people to participate in daily life with dignity and respect.” 

The Scottish Government's proposal to reform the GRA will make it easier for a person to change their legally recognised sex.  

While there’s likely majority support for the legislation in Holyrood, there has been fierce opposition to some of the proposals expected to be in the bill. One of the concerns is around the impact the legislation could have on women-only spaces.

Currently, under the 2004 Gender Recognition Act, trans people seeking a gender recognition certificate must have a formal diagnosis of gender dysphoria and live in their “acquired gender” for two years.

Speaking on the latest edition of Holyrood's podcast, Politically Speaking, EHRC chair Baroness Kishwer Falkner said the organisation had become aware of concerns about reform of the GRA since earlier consultations were carried out.

She said: “The most profound thing that has changed is that the consultations were done some time ago…since then a lot of proposed legislation has been put on the table…there have been a number of court cases, testing the two acts.

“We have realised something which we hadn’t quite appreciated before, which is the importance of data accuracy across a whole range of areas. One small example is the gender pay gap regulations. When you can’t rely on accurate data, then you’re in a more difficult position.

“All we’re asking the Scottish Government to do is show us what an impact assessment looks like. Have they done an impact assessment…have they done a memorandum on human rights?

“We’re waiting to see their legislative proposals. The draft bill that they produced covers some of these issues, but it didn’t go through the parliamentary process.”

Speaking on BBC Radio 4’s Today programme, Nancy Kelley, chief executive of Stonewall, said: “In 2018 (the EHRC) said it had a firm legal view that there was no relationship between having a Gender Recognition Certificate and access to single-sex spaces and it said it was formally in favour of reform.

“It reaffirmed that in 2020 as part of the consultation into the reform of the Gender Recognition Act in Scotland – it said exactly the same thing.

“When charities across the LGBT sector are coming together in sadness and in fear, actually, to say we are really worried about what our independent human rights institution is doing and its direction of travel, I think that is something we should all take seriously.”