Wed 26 Apr 2023 — 6 min

Minutes released from an extraordinary meeting of the Scotland Committee of the Equality and Human Rights Commission (EHRC) show that the EHRC published its harmful letter advocating a change to the definition of sex in the Equality Act 2010 despite strong internal criticism that this move would harm trans people, and seriously undermine the reputation of the EHRC as an independent body capable of protecting human rights.

The Committee emphasised that the proposed change, as currently formulated, ‘would lead to diminution of trans people’s rights, which we have a duty to uphold, without evidence of any specific benefit for other minorities. Such a move could lead to legal and other challenges to the Commission’. This amounts to truly damning criticism, from experts inside the EHRC itself.

The minutes detail a meeting of the Scotland Committee, which took place in late February, discussing proposed options for how to respond to a letter from the Minister for Women and Equalities, Kemi Badenoch, to the EHRC Chairwoman. The letter from Badenoch asked the Commission for advice on “the benefits or otherwise of an amendment to the 2010 Act on the current definition of 'sex', along with any connected or consequential enactments, bearing in mind the advantages and disadvantages that such a change might entail for affected groups.”

The minutes show that the Scotland Committee emphasised its opposition to such an amendment, agreeing that their ‘preferred option would be to maintain the status quo as they [did] not consider sufficient evidence [had] been presented to justify amending the definition of legal sex’ in the Equality Act 2010.

Significantly, the Committee raised serious concerns around the potential implications for trans people’s rights, as ‘proposed change were implemented, obtaining a Gender Recognition Certificate would no longer change a person’s sex in discrimination law’. Damningly, the Committee underscored the incompatibility of such a step with the Commission’s role as a human rights organisation, stating that ‘the Commission should be advancing the rights of minorities and not potentially diminishing rights for some groups’.

The Committee were broadly critical of the lack of evidence base for the proposed changes, as well as a failure to undertake sufficient analysis of the potential consequences. The Committee ‘advised gathering additional analysis, evidence and stakeholder views to better understand the implications and wider ramifications of such a change, and to consider alternative options.’ The Committee criticised the legal analysis presented to them for failing to demonstrate that an amendment to the definition of sex would actually resolve any issues where the law as drafted is not currently working properly. The Committee highlighted the need for further analysis of the impact on trans people’s lives, including their access to single-sex services and spaces. The Committee also recommended ‘a comparative analysis of what is being sacrificed and what is being gained’ as otherwise ‘any action could be considered a regressive step without justification’.

The Committee raised particular concerns about the definition of ‘biological sex’. The Committee highlighted that ‘there is no scientific consensus on what biological sex means, with particular definitional issues arising for intersex people, which makes this intervention problematic for the Commission’. The Committee warned that the paper lacked ‘suitable scientific rigour on this point’, which could ‘could lead to a lack of legal clarity if any changes to the Act are made’. This echoes information received by Trans Safety Network, disclosing a lack of scientific expertise within the EHRC, and that they have no concrete definition of what they consider ‘biological sex’ to mean, despite it forming the centre of their proposed reform.

The Scotland Committee also emphasised their belief that the publication of the EHRC letter would overstep the EHRC role as regulator, and that the focus of the EHRC should be to ‘acknowledge the complex legislative and balancing of rights issues that exist, outline the issues that the Commission is aware of, such as the potential diminution of trans people’s rights’. The Committee noted that potential Equality Act 2010 amendments are a ‘legal and policy matter’ which ‘should be undertaken by Government’ - not the EHRC. The Committee noted that ‘the Commission’s role is to regulate the Act and not to provide legal advice to the Government’.

The fact that the EHRC proceeded with the publication of its letter, despite such strong urging to the contrary from its own internal Committee, is deeply concerning. This is especially so given the purpose of the letter, as noted by the Committee, lay outside of the EHRC’s purpose and mandate.

This provides compelling further evidence that the EHRC no longer functions as a meaningful independent human rights body, but rather exists as a tool of the Government, acting solely to support the Government’s agenda. The institutional capture of the EHRC is now well-documented, but these minutes further highlight just how significant that capture has been.

The Scotland Committee itself raises concerns surrounding the reputation and perceived independence of the EHRC. The Committee notes that the proposed amendments would ‘[undermine] the Commission's long held position on trans rights’, which would pose ‘reputational risk’. The Committee also recommends that ‘the Board should consider the risk to our perceived political independence if we are perceived to be aligning with Government in the absence of robust evidence. This is a potential existential risk that such a perception could risk the Commission’s existence going forward’.

It is vital that organisations exist which are able to ensure the accountability of the United Kingdom to its international and domestic obligations regarding human rights, and that those organisations can act independently of Government. It is clear the EHRC is no longer capable of fulfilling that mandate. This is a deeply troubling situation for all those who depend on human rights protection - cis and trans alike.