Dear members of the Sub-Committee on Accreditation,
I am writing in response to emails to the EHRC from the Sub-Committee on Accreditation (SCA) Secretariat, received on 22 May and 1 June 2023, inviting our comments on third-party submissions. As agreed with the SCA Secretariat, this is a consolidated response to those submissions. It refers to our earlier correspondence responding to other third-party information, dated 5 May 2023, and we would request that SCA members review that alongside this response and it is attached as Annex A. We have, nevertheless, repeated some information in this response for completeness.
The two third-party submissions, one from TransPALS and a joint submission from Stonewall and others, relate to the position we have taken on sex and gender and our compliance with the Paris Principles. The submissions suggest that we have supported or collaborated with the UK Government in relation to its approach to issues of sex and gender, particularly in light of our letter of 3 April 2023 to the relevant UK Government Minister on the definition of the protected characteristic of sex in the Equality Act 2010. We strongly reject these claims.
The submission from Stonewall and others also refers to the previous submission they made to the SCA in February 2022. The issues raised were considered by the SCA at its March 2022 session, where members decided not to instigate a special review. A further submission from Stonewall and others was considered as part of our full re-accreditation as a NHRI in October 2022. We hope that the information we have previously provided to support the SCA’s consideration of these matters, ahead of its sessions in March and October 2022, along with the additional information provided in this letter, demonstrate our engagement with the concerns raised and provide assurance that we continue to carry out our mandate in compliance with the Paris Principles. We respectfully submit that there are no exceptional circumstances requiring the SCA to reassess our continued compliance with the Paris Principles.
We reiterate to the SCA our strong assurance that the EHRC is committed to promoting and upholding human rights, as our record strongly demonstrates. We have a statutory duty to protect and promote equality and human rights for everyone. That includes considering, carefully and impartially and on the basis of evidence, how the rights of one person, or group, might be affected by the rights of another. We do not allow our decisions and actions to be swayed by the loudest voices in any debate. On issues related to the rights of trans people, we listen to and engage with stakeholders with a wide range of differing and opposing views, clarifying the definition of ‘sex’ in the Equality Act, including to explain our decision-making and encourage open dialogue so that we can continue to promote human rights for everyone
We regret that the SCA is again being asked to examine these issues. Given the seriousness of the allegations, some of which reference me and other Commissioners by name, I wish to respond directly to SCA members in my capacity as Chairwoman of the EHRC’s Board, our legally constituted decisionmaking forum. We welcome the opportunity to correct inaccuracies in the third party submissions, explain our position in more detail and provide assurance to the SCA that we remain fully compliant with the Paris Principles.
Our engagement with the UK Government on issues of sex and gender
As we stated in our most recent correspondence with the SCA, dated 5 May 2023, section 11 of the Equality Act 2006 (our enabling legislation) requires the EHRC to monitor the effectiveness of equality law and gives us a specific power to advise Government on this. We also have a duty to promote awareness and understanding of rights under equality law, which, in relation to issues of sex and gender, can be complex. Where people’s rights may need to be balanced with one another, it is our responsibility to provide advice on how best to do so. This is not straightforward and, in some cases, we do this in difficult, technical areas of law that can attract strong views and disagreement. We provide our advice impartially, even when matters might be contentious. We will continue to listen to and consider the views of all groups, as we have done regularly throughout. You may also wish to note that I personally gave a comprehensive account of our letter of 3 April 2023 to our parliamentary oversight select committee, the House of Commons Women and Equalities Committee, which comprises Members of Parliament from all parties, as recently as July this year.
It is also worth noting that the position we took in our letter of 3 April 2023 has been warmly welcomed by some stakeholders, including many civil society organisations; although not by others, such as Stonewall and TransPALS. Members of all political parties have also expressed support for what they have called our balanced position, including in an open letter from a cross-party group of members of the UK Parliament’s House of Lords. A further significant recent development is that in July, the Labour Party (the main opposition party as recognised in the UK constitution) publicly acknowledged that sex and gender are different and has committed to maintaining protections for single-sex spaces where it is reasonable for biological women only to have access.
There is a clear need to move the public debate on issues of sex and gender onto a more informed and constructive basis. We see it as part of our role as a NHRI to enable these debates to take place in the spirit of more open, respectful conversations; this is why we suggested that the UK Government may wish to undertake further consultation.
We were clear that if the UK Government decides to take further the matter on which it sought our advice, detailed policy and legal analysis would be required, including in relation to any potential disadvantages to trans women and trans men and the impact on people with differences of sexual development (sometimes called intersex people). We recognise that this is a complex area, and that further evidence-gathering and stakeholder engagement would be required before the implementation of any legislative changes. We want to continue working with the UK Government and others to find a way forward on these important issues. But we are clear, both in our letter and in our communications with stakeholders, that any decision to amend the Equality Act 2010 rightly sits with Government and Parliament, as the democratically elected representatives of the people of the UK.
Suggestions that we have undermined the rights of trans people
As stated in our letter of 5 May 2023 to the SCA, we have repeatedly championed the rights of trans people to the UK Government’s Department of Health and Social Care, including raising concerns directly with Ministers about unacceptably long waiting times for gender identity services and insufficient advice and support. We also raised specific issues including in relation to the Government’s ‘list of specialist practitioners’ for providing a gender dysphoria diagnosis, which we know is a barrier for some trans people in obtaining a Gender Recognition Certificate. We have identified access to healthcare as an area of work where we and civil society organisations (CSOs) could work effectively together to support trans people. We are currently developing proposals for a package of work on these issues, and we will be seeking to engage CSOs as this progresses.
We hope these actions demonstrate our commitment as an NHRI to engage constructively with civil society. Indeed, we have also recently reached out to Stonewall and will be meeting with representatives to discuss the concerns raised in their submissions.
The submission from TransPALS refers to the end of mission statement published by Mr Victor Madrigal-Borloz, the UN’s Independent Expert on Protection Against Violence and Discrimination based on Sexual Orientation and Gender Identity, on 10 May 2023, following his country visit to the UK. TransPALS suggest that Mr Madrigal-Borloz concluded that, in our recent advice to the UK Government on the definition of sex, the EHRC had promoted the reduction in human rights protections for trans people with legal recognition of their gender. We reject this assertion. It is our view that, if a change was made to the Equality Act 2010 to define ‘sex’ in the Act as ‘biological sex’, all trans people who fall within the protected characteristic of gender reassignment would continue to be entitled to challenge service providers or employers about discriminatory policies or actions or about harassment related to gender reassignment.
We wrote to Mr Madrigal-Borloz on 23 May 2023 and 10 July 2023 to raise objections to the characterisation of our position in his statement and ask that he issue a public correction. We also offered to engage with him to clarify our position and provide additional evidence and input to support the preparation of his final report, as we believe that he may have misunderstood the relevant UK legislation.
Mr Madrigal-Borloz responded on 19 July 2023. In his letter, Mr Madrigal-Borloz reaffirmed the conclusions outlined in his end of mission statement but acknowledged our offer of continued engagement in the preparation of his report. He also committed to placing his considerations in the context of our wider mandate and acknowledged the examples of our work provided within our letter of 23 May 2023. Mr Madrigal-Borloz also advised that his concerns had been greatly assuaged by our assurance that we had no objective to offer a formula to exclude trans women from protections that they have under the Equality Act 2010.
Our position on the UK Government’s decision to prevent the Gender Recognition Reform (Scotland) Bill from receiving Royal Assent
The submissions mention the decision by the Scottish Government to launch a legal challenge against the Order made by the UK Government under section 35 of the Scotland Act 1998 preventing the Gender Recognition Reform (Scotland) Bill, passed by the Scottish Parliament in December 2022, from receiving Royal Assent. During the Bill’s passage, we set out our analysis of the implications of the Bill for the operation of the Equality Act 2010.
The submission from TransPALS suggests that we should have intervened further. We have called for constructive engagement between the UK and Scottish Governments on the complex issues raised by the Bill, but the ongoing legal challenge is a mainly constitutional matter and is not within our remit, in which case it is a matter for the courts to resolve – the hearing is expected to take place on 19-21 September this year. As such, it would be entirely inappropriate for us to engage in discussions between the Governments on the use of section 35 of the Scotland Act. We remain ready to continue to advise both the UK and Scottish Governments and Parliaments on equality law and human rights, which do fall within our remit.
Concerns regarding our independence and impartiality
The third-party submissions assert that the EHRC is “in cahoots” with the UK Conservative Government to reduce human rights protections for trans people. We strongly refute this assertion. Indeed, as mentioned above, our positions have received support from members of different UK political parties. Issues of sex and gender are still being actively debated in the UK and we see it as part of our role as a NHRI to enable these debates to take place in the spirit of more open, respectful conversations.
As noted in our letter of 3 May 2023 to the SCA, we take pride in, and place great importance on, our independence from Government and we continue to demonstrate our clear impartiality and independence through our willingness to robustly challenge Government. We take strong action to defend human rights protections where we consider they are under threat from Government action; for example, our statements and briefings to Parliamentarians during the passage of the UK Government’s Illegal Migration Act 2023 advised that the legislation risks breaching international obligations to protect human rights and exposing individuals to serious harm. We have signed agreements with two UK Government departments, under section 23 of the Equality Act 2006, which commit them to implementing legally binding action plans to make improvements to their practices. Other recent examples where we have robustly challenged UK Government proposals which engage human rights include our advice on the Bill of Rights Bill, the Public Order Bill, the Strikes (Minimum Service Levels) Bill and the Online Safety Bill.
Regrettably, the third-party submissions include a number of inaccuracies about the actions that the Commission has taken, and about individual actions taken by myself and my fellow Commissioners. Neither I, nor any other Commissioner, nor the Commission itself view trans people or their rights in a negative way. Our job is to protect and promote equality and human rights for everyone in Britain, including trans people. Commissioners are appointed to the Board by the responsible senior UK Government Minister through the public appointments process, which guarantees open and accountable procedures for appointment to all public bodies. Under this system, candidates follow a robust process in which their skills and experience are assessed on merit. My own appointment is subject to scrutiny by the UK Parliament and I underwent a confirmation hearing from two parliamentary committees, the Joint House of Commons/House of Lords Committee on Human Rights (JCHR), to be endorsed for appointment. Our enabling law requires Commissioners to have experience or knowledge relating to discrimination and human rights. This legislation and the UK public appointments process work together and collectively support the selection of an appropriately diverse and plural membership, ensuring the impartiality and independence of our Board. We note that the third-party submissions do not record that the last Chairman of EHRC was a former Chair of Stonewall, having been appointed under the same procedure and process.
Our Commissioners have a broad range and depth of skills and experience across different professions, including the law, business, academia and civil society. We have robust procedures in place to manage real or perceived conflicts of interest, including requiring all Board members to declare actual or perceived conflicts, publishing a register of interests, and requiring Commissioners to recuse themselves from any discussion where conflicts may arise.
Concerns about our decision-making processes and the Board’s consideration of advice provided by our statutory Scotland and Wales Committees
The submission made by Stonewall and others quotes extensively from the minutes of meetings of our Scotland and Wales Committees held on 28 February 2023. We publish the minutes of such meetings to support transparency and accountability. These Committees, whose statutory roles are set out in the Equality Act 2006, are each chaired by a Commissioner, with Committee members appointed by the Board for their expertise and experience. The Committees advise the Board about the exercise of our functions in Scotland and Wales respectively and exercise some delegated functions. However, the legal decision-making responsibility for strategy, policy and for using our regulatory powers, rests with our Board of Commissioners.
The minutes of the meetings held on 28 February 2023 include the Committees’ discussions of the potential implications of reform of the Equality Act 2010 and how the Commission should respond to the Minister for Women and Equalities’ request for advice on the definition of sex. The Board considered the advice of the Committees, as well as a range of other advice and evidence on legal, policy and practical matters relating to the operation of the Equality Act 2010 for people with the protected characteristics of sex and gender reassignment. The Board also considered issues that had been drawn to the Commission’s attention by service providers and other stakeholders, including following the publication of our guidance on single-sex services in April 2022. The Board’s decision-making process included more than 11 hours of detailed discussions and deliberation, over four Board meetings held between November 2022 and April 2023, with multiple issues considered before decisions were taken.
Requests for a review of our accreditation status
The issues raised in the third-party submissions, and addressed above, were subjected to thorough examination by the SCA at our periodic re-accreditation in October 2022. We submit that there are no exceptional circumstances requiring the SCA to reassess our continued compliance with the Paris Principles. As per guidance provided by Practice Note 2, in accordance with Article 16.2 of the GANHRI Statute, the SCA may initiate a Special Review where it appears that the circumstances of a NHRI have changed in a way that may affect its compliance with the Paris Principles. We submit that none of the situations which give rise to the need for a Special Review are present in the case of the EHRC.
I hope this letter provides the SCA with assurance that we are working to protect the human rights of everyone in Britain and that we continue to operate in accordance with the Paris Principles.
Should the SCA require anything further, we remain ready to assist.
Yours sincerely
Baroness Kishwer Falkner of Margravine
Chairwoman Equality and Human Rights Commission