The UK has been warned that its treatment of trans people could breach the European Convention on Human Rights.
Michael O’Flaherty, commissioner for human rights for the Council of Europe, expressed in a letter his concerns about the anticipated guidance that will follow the UK’s Supreme Court ruling on gender earlier this year.
In September, the UK’s Equality and Human Rights Commission (EHRC) insisted that its ‘single-sex’ code of practice is “clear to those who rely on it” after hundreds of businesses described it as “unworkable”. It has been suggested that planned changes to its guidance include clauses that would effectively exclude trans people from using public facilities, such as toilets, consistent with their gender identity.
A consultation on updating the code of practice launched in April shortly following the FWS v Scottish Ministers Supreme Court ruling, which determined that the 2010 Equality Act’s definition of ‘women’ refers to ‘biological women.’
O’Flaherty’s letter, addressed to Sarah Owen, chair of parliament’s women and equalities committee, and David Alton, chair of the joint committee on human rights, states that the guidance must avoid “the unsatisfactory situation in which trans people live in an intermediate zone [as] not quite one gender or the other”.
‘Zero-sum approach risks certain inferences’
In a swipe at lawmakers in the UK, O’Flaherty continued : “I observe a tendency to see the human rights of different groups as a zero-sum game. This has contributed to narratives which build on prejudice against trans people and portray upholding their human rights as a de facto threat to the rights of others.
“Such a zero-sum approach risks certain inferences being drawn from the UK Supreme Court judgment that could lead to widespread exclusion of trans people from many public spaces.”
O’Flaherty noted that should such exclusion occur the trans community will be robbed of being able to “participate fully and equally in society”.
He went on to urge that existing guidance is clear on how the inclusion of trans people can be achieved across all areas.
The commissioner further aired concerns about policies on access to gender-segregated spaces, stating that they would “require trans people to habitually ‘out’ themselves publicly,” which he noted could potentially break their right to private lives under article eight of the European Convention on Human Rights.
“Beyond privacy concerns, being forced to disclose sex assigned at birth may also significantly increase people’s vulnerability to harassment, abuse and even violence,” he noted, before concluding that the debate about trans rights shouldn’t detract from efforts to stop violence against women and girls.
‘EHRC’s new code of practice cannot be laid as drafted’
Jess O’Thomson, head of policy at the Trans+ Solidarity Alliance, reacted to the letter, telling PinkNews: “This significant intervention from the commissioner makes clear that the EHRC’s new code of practice cannot be laid as drafted. The minister [equalities minister Bridget Phillipson] must reject it and insist the EHRC try again – making clear how to include trans people, not just exclude. Exclusion of trans people from services for their lived gender, the letter makes clear, must be the exception – not the rule.
“The commissioner also emphasises that legal gender recognition cannot only apply to things like pensions and marriages, but must have real meaning in people’s everyday lives. The government is going to have to ensure this in order to comply with its human rights obligations.”
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