It’s little more than two months since the UK Supreme Court issued its much-criticised gender ruling, striking fear into the trans and wider LGBTQ+ community. As part of Pride month, barrister Cathy Jaquiss, who is Rainbow Migration’s legal officer, explains what the judgement, and the Equality and Human Rights Commission’s (EHRC) response to it, could mean for trans people seeking safety in the UK…
The recent Supreme Court ruling was significant but it is hugely important to continue to emphasise that it only dealt with how the words “sex”, “man” and “woman” are defined for the purposes of the 2010 Equality Act. The ruling does not change trans people’s entitlement to refugee status under the Refugee Convention and other associated human rights legislation.
Transgender people are still entitled to asylum if they meet the criteria: which, in basic terms, is that they face a risk of persecution due to being trans, that the state in their country of nationality would not protect them, and that they cannot relocate to that country to avoid risk.
Trans rights, including the rights of trans refugees and migrants, are still protected under international human rights law. The Home Office, as a public body, is required to act in accordance with the European Convention on Human Rights.
However, the ruling, and especially the associated draft guidance issued by the EHRC, is already starting to have an impact on the every-day lives of trans people in the UK. Rather than giving clarity on the issue of how to include trans people in services, the guidance seems more focused on how to exclude transgender people from those services.
We at Rainbow Migration support many LGBTQ+ people seeking asylum, who already find the process emotionally taxing or traumatising. Long waiting times, frequent legal changes, and difficulties accessing legal advice, all add to the uncertainty. This government’s recently announced raft of measures aimed at “reducing migration” will have wide-reaching impacts. The Supreme Court ruling and the EHRC guidance only add a further layer of uncertainty and hostility.
The potential damage which might be caused by this climate of uncertainty cannot be over-stated. Even among lawyers, there is a lack of consensus on the full implications of the ruling, and numerous legal challenges have already begun.
In this context, trans people seeking asylum and migrants face particular and numerous intersecting barriers which put them at risk of harm in particular ways. This can include a lack of appropriate and safe accommodation, a lack of access to healthcare and mental-health support, problems finding legal support, racism and misogyny. The hostile climate created by the judgement and EHRC guidance only makes these barriers more difficult to overcome.
Recently, the government changed the standard of proof so that all people seeking asylum have to prove to a higher standard than previously the reason they are refugees in the first place.
But if they are unable or afraid to access services which align with their gender, such as healthcare or community spaces where they can socialise, this may have an impact on their ability and confidence to prepare and present evidence for their asylum claim. Crucially, the climate of hostility, including the recent rhetoric from the government in relation to trans rights, could undermine their confidence in making a claim, which involves disclosing gender identity to government officials.
That said, although interpretations of the Supreme Court judgement do differ among lawyers, many legal interpretations affirm that the law still allows for trans-inclusive service provision. Instead of jumping to exclude on the basis of the judgement, or the draft guidance, service providers should take legal advice and consider carefully their objectives and justifications for trans-inclusive service.
We strongly encourage organisations providing services and spaces to trans people seeking asylum and migrants to take legal advice before implementing any practical or policy changes.
The EHRC is consulting on its guidance until 30 June, so now is your chance to speak up. Anyone can respond, and TransActual, Mermaids and Scottish Trans have created a resource to help you understand which questions to answer and what you might want to say. Read the guidance here and respond.
Share your thoughts! Let us know in the comments below, and remember to keep the conversation respectful.
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