High Court dismisses JR over EHRC trans guidance

Applications for judicial review over the Commission for Equality and Human Rights’ interim guidance on the provision of single-sex services in relation to trans rights were today dismissed by the High Court - with lead claimant the Good Law Project told it did not have standing to bring the case. 

Ruling in Good Law Project Limited and others v Commission for Equality and Human Rights Mr Justice Swift said that, although the crowd-funded activist group ‘has a sincere interest in the subject matter of the case…it is not enough to establish the “sufficient interest” required by section 31(3) of the Senior Courts Act 1981’.

The remaining three claimants, who are anonymised as BOT, BNW and BBS, were granted permission to apply for judicial review. However the judge dismissed the applications on all grounds. 

The claim was brought over the legality of interim guidance published by the EHRC following last year's Supreme Court decision in For Women Scotland. The claimants argued that the EHRC's advice that under the Equality Act 2010 'man' and 'woman' meant 'biological man' and 'biological woman' was wrong in law, and the EHRC had acted unlawfully by publishing it.

However the judge said the interim update, on provision of single-sex toilets and changing facilities, ‘did no more than consider the application of the provisions in the EA 2010 and the 1992 Workplace Regulations’. Dismissing the judicial review, the judge said: ‘A requirement to state the law accurately is not the same as a requirement to give a comprehensive statement – to include everything that could possibly be said.'

Any different conclusion could generate 'a publication that was likely to be impenetrable to its intended audience', the judge said. 

‘The guidance in the interim update was directed to the provision of single-sex facilities. This was the matter that the judgment in For Women Scotland had affected and the EHRC did not act unlawfully by addressing only this in the interim update rather than more general issues relating to the gender reassignment protected characteristic.’

The Good Law Project said it will appeal. Its announcement for a new fundraising campaign noted that 'the EHRC is claiming costs of almost £300k, and we have to pay our lawyers too'.