UK equality watchdog to extend gender guidance consultation, reports suggest

The UK’s equality watchdog is likely to accede to requests for more time to evaluate its formal guidance on the supreme court ruling concerning gender matters, following significant backlash from staff and stakeholders, according to sources.

According to ‘The Guardian’, insiders suggest that the Equality and Human Rights Commission (EHRC) might have to revise its initial response, which was criticised for being overly literal about how organisations should implement the court’s decision, stating that the term “woman” in the Equality Act refers only to biological women.

The EHRC’s interim guidance, issued nine days following the supreme court decision, stated that trans individuals should not use toilets corresponding to the gender they identify with, and sometimes not even those assigned at birth. Trans support groups have informed the Guardian that employers are already directing trans employees to use separate facilities, often causing distress and outing them to colleagues.

According to its chair, Kishwer Falkner, the EHRC planned to release its formal response to the ruling—an updated code of practice for interpreting the Equality Act—by summer, initially allowing only two weeks for public feedback on its application.

Recently, the House of Commons women and equalities committee (WEC) contacted Lady Falkner to propose extending the consultation period to at least six weeks to ensure trans individuals’ needs are not overlooked.

EHRC insiders indicate that the commission will likely agree to a six-week consultation and that the final code of practice may reconsider the interpretation presented in the interim guidance and Falkner's media statements.

Sources expressed concern about how well Falkner and her mostly Conservative-appointed commissioners will defend their position during their next month’s WEC questioning.

An EHRC insider mentioned there was notable unease among staff about the interim guidance and its preparation before the 25 April publication.

They explained: “Most people, including some senior staff, were blindsided by the interim guidance’s release late Friday. They were taken by surprise with texts from family and friends asking, ‘What’s happening?’ Staff involved in sex and gender issues and the press team responsible for media clarification were not notified beforehand. It was chaotic.

“This workplace is quite inclusive, and many employees have trans friends or partners, leading to challenges in explaining nonsensical guidance.

“There’s been considerable pushback. Some stakeholders threaten to withdraw collaboration. Numerous staff are considering leaving due to the secretive and apprehensive approach taken by the chair and senior leadership.”

At a recent routine EHRC all-staff meeting, which wasn’t specifically convened for the ruling, concerns about the interim guidance were predominant in staff questions directed at Falkner and CEO John Kirkpatrick.

Staff particularly worried that the supreme court’s directive to avoid painting the judgment as a triumph for either group had been overlooked, urging the commission to reiterate its initial commitment to protecting transgender individuals from discrimination.

On Tuesday, TransLucent, a leading advocacy group, had its lawyers address a letter to the EHRC, warning that comments by Falkner could bias the consultation’s outcome.

Sarah Owen, WEC chair, stated in a cross-party letter requesting an extended consultation period that many transgender individuals feel “anxious and unsure about their position post-ruling.”

This letter asked Falkner to clarify several points, including: “What steps the EHRC will ensure to uphold the rights of all individuals, as noted in the supreme court judgment.”