Equalities watchdog faces judicial review challenge over updated Code of Practice

The revised code, which came into force on Wednesday (5 August), sets out how public bodies should interpret the Equality Act 2010.

It reflects, among other things, the Supreme Court’s decision in For Women Scotland Ltd v The Scottish Ministers, which concerned the interpretation of the 2010 Act in relation to gender reassignment and sex discrimination.

The document has been criticised by several organisations, including the Good Law Project, which argues that it tells service providers they can no longer operate on a trans-inclusive basis.

The legal campaign group alleges that the statutory guidance “lacks nuance, ignores context and pays no attention to the ways women want to run their own spaces and services”.

Their letter before claim specifically refers to provisions that would require trans-inclusive women’s services to either ban trans women entirely, or stop being a women’s service, and open up to all men. The same would apply to trans-inclusive men’s services under the guidance, according to the letter.

The group said this encourages a nationwide trans bathroom ban, but also applies to classes and clubs.

A spokesperson for the Good Law Project said: "This transphobic statutory guidance will cause immense harm – and it’s all based on wrongheaded reading of the law. It will have devastating consequences for trans people’s lives, as well as a dreadful impact on women, disabled people and countless organisations. It cannot be allowed to stand – so together we’re fighting back."

The EHRC and the Ministry of Housing, Communities & Local Government have until 11 August to respond to the letter, which was sent by Leigh Day Solicitors on behalf of the Good Law Project late last month (28 July).

A Government spokesperson said it would be inappropriate to comment on ongoing legal proceedings.

The Good Law Project's letter before claim follows a separate legal threat made by campaign group Translucent earlier last month.

The group, which represents and advocates for the trans community, sent a pre-action protocol letter on 3 July and has raised £39,000 out of a £50,000 goal.

The guidance has recently drawn criticism from some councils while the EHRC's previous chair, Baroness Falkner, wrote in The Times that the law would “remain unenforced by the equalities regulator” due to a lack of funding.

On Wednesday, six London boroughs wrote to the Equalities Minister Bridget Phillipson calling for confirmation that the Code cannot be used to exclude trans people from services.

They also demanded that the Government introduce legislation which protects the rights of trans and non-binary people to ensure that “they are able to participate fully in public life and access services safely and with dignity”.

Southwark Council, which was among the six local authorities, previously warned the Code would marginalise trans people and create "legal and operational uncertainty" for local authorities.

Adam Carey