Frightened and desperate: EHRC anti-trans campaign loses its momentum

A week of absolute scenes leaves the organisation in limbo.

Photo by Greg Rosenke on Unsplash

Absolute scenes at the Equality and Human Rights Commission (EHRC) this week. I’m not going to pretend that this level of stupidity is unprecedented - we all lived through Brexit - but it’s certainly able to compete with anything of that era. The anti-trans campaign from Britain’s equality watchdog has degraded into the most astonishing drivel.

Sometime on Wednesday, EHRC chair Kishwer Falkner wrote a letter to equalities minister Bridget Phillipson. She then decided to publish it on her website. Falkner is, at best, utterly hopeless, but the problem is that she is very rarely at her best. This letter managed to be noticeable for its foolishness, even in a CV which is thick with inadequacy.

Last September, Falkner sent Phillipson her draft code of practice. This is the crucial document which will define the future of trans rights in Britain if it is implemented by the government. And yet since then - nothing. Everything seems to have gone ominously quiet. Now she’s getting angsty, so she has written a letter to Philipson urging her to hurry up.

My personal highlight came in paragraph six. “I note,” it said, “that the Office for Equality and Opportunity (OEO) requested on 9 October sight of additional information to help inform ministers’ consideration of the draft code”. Oh interesting, you think. What kind of additional information is that? Well it turns out it’s the Equality Impact Assessment. “We provided this information to OEO on 13 October,” the letter says. Just stop there for a moment and take it in. The equalities watchdog submitted a draft code on the most contentious equalities issue of our time without an equality impact assessment.

Often there is no is strict requirement for a code to come with an equalities assessment, as long as they can show that they have dealt with any impact on equalities in the text itself. But the EHRC evidently did not believe it had dealt with it in the text, because when the government asked for the impact assessment last Thursday, the organisation evidently spent the weekend putting it together and then submitted it bright and early Monday morning. Then on Wednesday they had the gall to send the government a letter demanding they hurry up. These people would make a GCSE student blush.

Let’s pause, freeze-frame, and ask ourselves: how did we get here? How is an equalities watchdog behaving with this degree of incompetence? Why is it trying to roll back equality law at all? How did the campaign against trans rights, which not long ago seemed all-powerful, suddenly appear to stutter and hesitate?

Falkner was appointed chair of the EHRC in 2020 by the Conservative government. Needless to say, equalities watchdogs should not be appointed by government - it results in appointments based on ideological alignment rather than competence.

Brief but important sidenote: Our whole institutional ecosystem is vulnerable to precisely this sort of shitfiddling. As a recent report by Christina Pagel, Martin McKee and Luke Flynn pointed out, many of the UK’s top scientific institutions, from the Met Office to the UK Health Security Agency, have inadequate institutional defences to prevent potential political interference. Like the EHRC, many of them have their leadership caste selected by ministers. Others rely on ministers for their funding or the setting of their priorities. We need to urgently look at these areas with the possibility of a Nigel Farage government in mind. How can you safeguard them against an authoritarian far-right government? How do you protect civic society against the incoming threat?

In the case of the EHRC, it would be far preferable to have the women and equalities select committee appoint the leadership. Select committees have a culture of cross-party consensus and expertise. Their membership is selected by MPs, who are themselves selected by the public. It would be a good way of making sure the watchdog leadership had democratic legitimacy and the consensus-seeking values we would want of them.

Instead, we have a system where the government picks the leadership and invariably does so in its own image. In the Conservatives’ case this meant they looked for someone just like them, someone who could combine a reactionary sensibility with weapons-grade ineptitude. There is very strong competition in that market - heavily oversaturated - but Falkner managed to stand out regardless.

Around six months ago, Faulkner saw her chance to establish a legacy. The Supreme Court ruled in the For Women Scotland case. You can read everything you need to know about that judgement here but the basic summary is as follows: The judges found that for the purposes of the Equality Act, a trans woman is a man. In all other pieces of legislation, a trans woman is still a woman. Yes, this is very confusing. No, it is not a satisfactory state of affairs at all. But that, for the time being, is where the law has ended up.

Falkner went to work writing an update to the formal code of practice - the 200 page guidebook to equality rules in Britain which explains how employers, businesses, public services and others should interpret equality law. If she had done this in a measured and limited way, reducing vulnerabilities in her positions and the risk of legal challenge, she could have secured a generational change in her chosen political direction. But it’s like she couldn’t help herself. She was suddenly at the forefront of a powerful movement. The right-wing newspapers were on her side. Famous authors were behind her. A great army of campaigners were willing her on. The broadcasters had begun to cover trans issues in the same way they did Donald Trump - as if some great unstoppable wave of reaction was now crashing over the nation. Falkner consequently got overexcited.

Her big mistake the ‘interim update’. The EHRC published this, out of nowhere, as a holding position while it worked on the code on practice. This went much further than the Supreme Court judgement, insisting that trans women should use men’s toilets and that trans men should use women’s toilets or possibly no toilet at all.

This was simply wrong. Or, to put it more generously: it would need to be demonstrated through some very ingenious legal arguments. The rules on toilets at work, which constitute the majority of toilets you’ll use outside your home, are found in regulation 20 of the Workplace Regulations 1992. They are not in the Equality Act. To state as fact that they have changed as a result of the Supreme Court judgement was therefore a preposterous overreach. It was the product of an organisation which had allowed its mouth to write cheques which its arse simply could not cash.

Best of all, we learned this week that the EHRC did not even bother notifying Phillipson of the interim update before it published it, let alone provide her with advanced sight of it. No wonder relations have gone a bit frosty.

Falkner then initiated one of the stupidest consultation exercises I have ever seen, and, once it was over, sent a draft code with anti-trans provisions to Phillipson on September 4th. Then everything went silent. Until Wednesday.

We learned a lot from Falkner’s letter. Some things we can tell for certain. Some we can only guess at. All of them are pretty funny.

The first thing we know for certain is that official communication between the EHRC and the government has ground to a halt. In the first line, Falkner writes: “I am writing to follow up on my letter of 4 September that submitted our draft code of practice”. This strongly suggests there’s been no communication since then.

This kind of letter would never normally become public. It should never have been written in the first place. Usually, officials in the EHRC would have been in constant communication with civil servants in the department. They would have raised concerns with them and had them resolved. They would have asked why things were taking so long, or what the issues might be, or what kind of additional documentation was required. Evidently none of that communication is taking place.

Why has it stopped? After all, Keir Starmer and Phillipson herself seemed perfectly keen on rolling back trans rights. They embraced the Supreme Court judgement as a way of closing the issue down. Phillipson happily insisted trans women should use men’s toilets.

Well, one of three things may have happened.

First, it’s possible that the government has realised it faces a risk of significant political kick-back, either at Cabinet level or in the parliamentary party. After all, Labour MPs on the women and equality select committee savaged Falkner when she appeared before them. No.10 has been increasingly open to progressive complaints about its position, for instance on Brexit or Reform’s racism. Perhaps it has politically decided that the extreme anti-trans proposals being put forward by Falkner are too heinous or politically dangerous to pursue.

Second, the government may simply be waiting for Falkner to leave her position next month, when she will be replaced by Dr Mary-Ann Stephenson. Stephenson is considered with suspicion by many trans campaigners but she is much more competent than Falkner and arrives with less baggage.

Third, and this is most likely, officials have looked at the Falkner code and concluded that it is going to lead to a legal challenge and that this legal challenge has a very high probability of success. This was the danger experts started warning about in the wake of the original Supreme Court judgement.

Many challenges have already been launched on the basis of the interim update. More will come. They will centre on Article 8 and/or Article 14 of the European Convention on Human Rights. They will cite European Court of Human Rights case law, which guarantees trans peoples’ “personal development” and “physical and moral security”. And they will cite human rights jurisprudence, which prevents trans people being treated as “a member of a ‘third sex’”.

It has been clear from the moment of the EHRC’s interim update that the toilet ban would be torn apart in Strasbourg if it wasn’t torn apart in domestic courts first. It’s likely that government lawyers have looked at this code, recognised the danger coming down the tracks, and warned ministers: hang on a minute mate, let’s just take a moment here. If this goes to court we will lose.

Ministers will then hopefully have finally realised where this could all lead: a Strasbourg court judgement, combining European human rights and trans rights, in one godforsaken culture war shitshow, on the eve of the next election. No, thank you.

We don’t know why the comms between government and the EHRC went dead. What we do know is that the EHRC has become increasingly desperate. The majority of Falkner’s letter is an attempt to put pressure on the government to publish the code and lay it before parliament. “As you will appreciate, the longer the period before the new code can be published, the longer the current unsatisfactory state of affairs will continue, therefore allowing practices inconsistent with the law to persist,” the letter says. It’s one of half a dozen entreaties, which takes on an ever-more anguished tone.

By the end, Falkner is reduced to insisting that her code is really very good and totally respectable. “As the body responsible for the enforcement of equality law, we recognise our own responsibility to ensure that our updated draft code reflects the law accurately,” she writes. “We are confident that the draft provided to you now does so. It is consequently our strong preference, having been advised at expert level about its scope and accuracy, that the updated draft code be brought into force as soon as possible”. This is a very revealing paragraph. The ECHR plainly believes the government is holding up proceedings because it does not think the code is legally safe.

All rather pitiable and embarrassing. Then, a few hours after the letter was published, something rather extraordinary happened. The EHRC removed the interim update from its website.

After a while, you’re reduced to just staring at these people in disbelief. The sequence of events is so preposterous it’s hard to believe it has taken place at all. First, they published an interim update which went way beyond the Supreme Court ruling and effectively attempted to ban trans people from public toilets. Then they started editing the interim update when it became clear that they had fundamentally misunderstood the law they were tasked with assessing. And now they have simply given up on it altogether and deleted it from the website.

Imagine being a business and trying to work out what the hell to do in this area. Imagine having to sit there, worried that you’ll get sued if you get it wrong, and watching the organisation which is supposed to help you put up one piece of advice, then edit it, then delete it altogether. Absolute clowns.

In an amazing bit of copy, the EHRC said yesterday that the interim update had been deleted because of “important developments”. What are those “important developments” you ask? The fact that they have written a letter to the minister asking her to hurry up. Genuinely that is their reason. Every day is take-your-child-to-work day at the EHRC.

God knows what’s going on in there. It sounds like a fucking madhouse. Maybe the frenzy of activity we saw yesterday was simply the external projection of a culture in a state of total collapse. Or maybe they’re trying to cover up their own mistakes - publishing the letter in the hope that it will distract attention from the removal of the interim update. Or perhaps it is part of some half-arsed ploy to put pressure on the government. Falkner may be trying to rally the anti-trans forces which gave her so much momentum after the Supreme Court ruling - get the Mail involved, nab another Telegraph front page, hope that Phillipson will take fright.

God knows. What we do know is this: They’re stuck. The interim update has been pulled. The draft code is in limbo. The EHRC overreached. It overplayed its hand. And now it is desperate. Every paragraph of that letter, every sentence, reeks of it.

Is there a moral lesson in all this? Yes, there are several, but the most important is the most basic. If you want to rig civic society so that it pursues your reactionary agenda, try to make sure you pick someone halfway competent.

Odds and sods

My piece for the i newspaper this week was on the return of Brexit as a thing that we actually talk about now. These have really been an astonishing few weeks for those who want to get back into Europe and the path to a Return agenda is now really very clear. But I hope we think deeply about how we want to approach that fight.

The first episode of an epic Origin Story three-parter dropped: Lenin, Trotsky, Stalin. The tale of three absolute bastards and of the vicious paranoid degeneracy they inflicted on their country. If this is a weak spot for you, check out the episode. We’ll give you everything you need to know.

I watched Love Lies Bleeding this week, which is a properly majestic piece of work. It really reminded me of those sleazy thrillers from the 80s and 90s - films like The Grifters, True Romance, The Last Seduction and Bound. Everything has this vicious squelchy detail to it, as if the whole of the world is lined with a layer of filth. A nasty little piece of romance and idealism, with an unpredictable heart.

Right, that’s your lot - fuck off.