Judgement Day for the EHRC

How the equality watchdog turned into a culture war campaign group

Photo by Tim Mossholder on Unsplash

Baroness Kishwer Falkner walked into the committee room with one intention. She would talk the clock down. That was it. Just the one strategy. Talk the clock down.

The situation was dire. She’s the chair of the Equality and Human Rights Commission (EHRC). In the weeks since the Supreme Court case on trans rights, this organisation has behaved in extraordinary ways, drastically overstepping its bounds and insisting on draconian and legally baseless restrictions on the lives of trans people. Now, finally, she'd have to answer for her behaviour in front of the women and equality select committee.

Her team had evidently briefed her that her best chance of survival was to talk down the clock. There's nothing original in this. We see it every day - it's the tactic deployed by ministers on the Today programme. Whatever you're asked, you deploy a bridging phrase to get you from the initial question to what you want to talk about. In Falkner's case, this involved telling the MP what was at "the heart" of their comment and then escaping to a series of unrelated platitudes. Then you just go on and on. Work down the clock. Neutralise the time, minute by minute. Because every minute you kill is one they can't use against you.

Committee chair Sarah Owen asked the first question. The EHRC was facing "news reports and statements that have damaged the reputation and public trust in the organisation". How would she improve? Falkner responded with five straight minutes of meaningless babble. "I want to come back to my first question," Owen finally replied, "because, I'm sorry, you didn't answer my first question."

Half an hour later, Falkner had veered off into a long non-sequitur on religious observance, forcing Owen to once again try to reel her in. "Baroness Falkner," she said, "may I just stop you there. That was not what we asked."

Two hours passed. They felt like eons. Whole civilisations passed over us in the sky, evolving from primitive stone-tool societies to vast interstellar empires. Solar systems burst into life, developed complex planetary satellites and then crumbled back into their collapsing star. And yet here we still were, ageing rapidly, time having lost all meaning, listening to Baroness Falkner engage in another desperate attempt to wind down the clock.

Each attempt at specificity saw her dash away into generic management-speak gibberish. Liberal Democrat MP Christine Jardine, for instance, asked her how the EHRC's advice on trans people complied with a key 2002 human rights ruling in the case of Goodwin vs the UK. "I wonder whether it might be helpful to give you a timeline of where we are on these matters because that in itself might reduce anxiety," Falkner replied, and then we were lost, once again, in the predictable, brightly-lit hallways of her mind.

Eventually, once the hearing hit the two hour mark, Falkner could not contain herself. She was desperate to escape. She had undergone her ritual and now she wanted out. She appealed to Owen. "Chair, I wonder whether… you would be able to tell us how long this evidence session is meant to last. I thought it was two hours." Owen seemed to stifle a smile. "Yes, but it really does depend on the length of your questions," she replied. "Now if you would like to be briefer in your responses perhaps that would facilitate us in getting closer to a closer time of quarter to five?"

Falkner didn't like the sound of that at all. "I'm afraid I can't stay to then," she said. "because I wasn't told it would stretch. I can stay until 16:30." Owen allowed the thin gauze of social respect to fray. "Shall I bring you to a close every time I feel you're going off topic?" she asked sweetly. "Please do," Falkner smiled. A very British moment of mutual derision.

Falkner had two key points she wanted to get across. The first was that they were listening. She returned to this subject again and again. How would she respond to trans people who feel afraid about what's happening? "The first thing I would say to those people is that they should respond to our consultation," she replied. Indeed, she was even listening to organisations which had attempted legal action against her. "That doesn't make a jot of difference to our duty to listen to them. And we are listening to them. We are listening to them with interest".

Falkner's second point was that none of this was her fault. She had not come up with the Supreme Court judgement. Her duty was simply to communicate what the judgement meant legally. Once again she was told of trans women put into extraordinary difficulty - in one case having to tell their employer of 30 years they were trans. "I think we have a slight danger here of shooting the messenger," she said. "The judgement was one delivered by the Supreme Court and I suggest you call the five justices in front of you and challenge them on why they arrived at the decisions they've arrived at."

Both of these points are flatly wrong and highly misleading. The consultation exercise is a joke. And the EHRC, far from trying to communicate the law, is attempting to rewrite it so that it is as punishing to trans people as possible. This is the story of how it is doing that.

The EHRC has always been a strange beast and its appointments have always been political, to a certain extent. But this issue became particularly acute during the previous Conservative government, as No.10 morphed into a culture war grievance factory, desperately trying to pick fights on issues like colonial statues, free speech in university and pronouns: the full gamut of modern political tiresomeness.

The final decision-maker on the EHRC leadership team - including the chair and the governors - is the minister for women and equalities. That's a problem, of course, because the recent Conservatives in that role were completely batshit. Liz Truss occupied it between 2020 and 2022, then Kemi Badenoch took over between 2022 and 2024. During this tail end of the Conservatives' time in power, they stuffed the organisation with conservative figures.

Falkner was made chair in December 2020. She was part of a pattern of appointments. Alasdair Henderson, who worked on a legal challenge against the NHS' use of puberty blockers, was made a commissioner in 2018 and then reappointed in 2022. David Goodhart, who once argued that it is "common sense" to have a "preference for your own ethnic group", was made a commissioner in 2020. None of these figures were beyond the pale - they were all firmly within the mainstream cultural right. But they were very odd appointments for an equality and human rights body. The EHRC had effectively been hollowed out and turned into the Spectator Online.

As David Isaac, the head of the EHRC between 2016 and 2020, protested: "My view is that an independent regulator shouldn’t be in a position where the governments of the day can actually influence the appointments of that body to support a particular ideology."

The impact of this new reactionary version of the EHRC could be seen in the wake of the Supreme Court judgement. Two weeks after the ruling, late on a Friday night, the EHRC published an interim update. It is one of the most disreputable and irresponsible documents I have ever seen a public body release. It laid out a position which, until recently, would have been considered on the very furthest fringes of anti-trans activism.

It stated that trans women should use men's toilets. Trans men should use women's toilets - or possibly no toilet at all. This final point was simply left to hang in the air, without resolution, nor with any indication that they realised how utterly intolerable it was. Where could trans people go to the loo? It wasn't clear. Ideally they should be provided with mixed sex toilets, although in most cases this would need to be in addition to single sex toilets. What if employers or businesses could not provide them, or afford to build them? Who knows.

This was, simply put, the eradication of trans people from the country's social fabric. Most people cannot take a job if they have to out themselves to their colleagues whenever they need the loo. They will not go to a restaurant or the theatre or attend trade union meetings or go to church or see their child in a school play. The toilet issue is at once stupefyingly banal and yet existential.

The interim update was meant to act as a placeholder while the organisation worked on a formal code of practice. This is the guidebook to equality rules in Britain - 200 pages of guidance explaining how employers, businesses, public services and others should interpret equality law. It's a tremendously powerful document.

It has now become the most important battle ground for the future of trans rights in Britain. The EHRC is plainly trying to use it to establish a new, much more restrictive status quo.

The consultation which Falkner placed so much emphasis on is a mirage. It has been carefully designed to make sure no-one can get in the EHRC's way.

Initially, Falkner tried to set a two week consultation on the new code of practice. This was an almost comically short period for such a seismic change to a complex document concerning a delicate alteration of rights with profound implications for thousands of people. When the two week deadline was revealed, MPs on the women and equalities committee took action, writing to the EHRC and suggesting they make it six weeks. The EHRC reluctantly complied and extended the consultation.

But even once it had been forced to provide a vaguely reputable timetable, the organisation found other ways to fix the results. The first way it did this was to limit the consultation so that participants could not challenge its radicalised interpretation of the Supreme Court judgement. "The Supreme Court made the legal position clear," the interim update stated, "so we will not be seeking views on those legal aspects."

This is an extraordinary thing to claim, because there is no legal consensus on the Supreme Court ruling whatsoever - even among Supreme Court judges themselves, let alone anyone else. Former Supreme Court judge Lady Hale, for instance, says it has been "misinterpreted". Former Supreme Court judge Lord Sumption says it has been "misunderstood". Incredibly, Falkner herself basically admitted as much during the committee session. "Much as I would love to say that there will be clarity from tomorrow morning," she said, "I can't say that."

Indeed, the EHRC's own position - stated very quietly away from the headlines - is that the legal position is very complicated. Last month, the pro-trans Good Law Project sent the EHRC a formal letter under the pre-action protocol challenging its interim update. Normally a defendant has 14 days to respond, but the Good Law Project wanted answers earlier than that. They asked for a response in seven days.

That was a perfectly reasonable request. After all, the EHRC had insisted that "the Supreme Court made the legal position clear" so they should have been able to respond easily. But now things had changed. They needed more time. "The LBA [letter before action] raises significant and complex issues under four separate and detailed grounds for review," the EHRC replied. "These will need to be explored carefully and properly considered."

All of a sudden things were not as "clear" as they had been made out to be. Suddenly they were "significant" and "complex" and would need to be "properly considered".

And yet even after this letter was sent out, the EHRC continued to pretend that the legal position was clear, in the letters it wrote to groups representing trans people asking them to take part in the consultation. These are the meetings Falkner said demonstrated how conscientious she was being.

An invitation letter was sent out to trans groups by John Kirkpatrick, chief executive of the EHRC, on Tuesday afternoon asking them to appear for a question-and-answer session the following Monday. Once again, it was an absurdly short time frame. As the managing director of one trans group wrote back: "The lack of appropriate notice means that no board members can make themselves available."

Even if those groups could attend, there would be little point in doing so, because the EHRC had again banned any discussion of the legal position. "The Supreme Court made the legal position on the definition of sex clear," Kirkpatrick wrote, "so we are not proposing to discuss views on the judgment or the decision-making process of the Supreme Court during this Q&A session."

Remarkably, Kirkpatrick then said that the session wouldn't even have anything to do with the consultation. It's just a chat, with no formal implication. "Views shared within the Q&A session will not be considered as part of the consultation," he wrote. This led to a total collapse in any remaining confidence from trans groups, most of whom have now decided not to attend. "The lack of clarity of the basis of the meeting is highly concerning," one managing director replied, "and makes me question the integrity of the whole consultation exercise."

Instead of being able to take part in the consultation through the meeting, Kirkpatrick said, trans groups could "submit a response" online. This is the designated channel through which it wants views to travel. And yet, when you use that channel, it has clearly been designed to prevent any meaningful engagement with the EHRC position. You can download it for yourself from the EHRC website if you like. I recommend reading it with a gin and tonic and a sense of pitch-black humour.

The document is the kind of thing you'd find in a Terry Gilliam film. It does not just block any discussion of the legal situation. It goes further than that and blocks any discussion of the substance of the EHRC position at all, on any issue. The one and only thing it allows participants to talk about is whether the EHRC position is "clear". It's basically an English comprehension exercise, structured somewhere below GCSE level.

You are, for instance, presented with the proposition: "The explanation of the updated legal definition of sex is clear." Then you are told: "Select one answer: Strongly Agree, Agree, Disagree, Strongly Disagree, Do not know." It asks this question again and again, like David Brent talking to Keith, on various different aspects, in exactly the same formulation. This is not a real consultation exercise at all. It is a charade.

There is a good reason for the EHRC to try and avoid meaningful consultation. It is because their public pronouncements have almost no connection with the Supreme Court judgement. They have taken a limited judicial ruling and expanded it to shocking, country-altering levels.

The Supreme Court ruled on one issue: the definition of the words 'man' and 'woman' in the Equality Act. They decided that man meant biological man and women meant biological woman. In other words, a trans man is a woman and a trans woman is a man.

But this is only the case for that one piece of legislation. In every other piece of legislation, a trans man is still a man and a trans woman is still a woman. This is because the Gender Recognition Act states that someone with a gender recognition certificate has changed their sex "for all purposes".

The basic situation we’re in now is therefore as follows: For the Equality Act, a trans woman is a man. But for all other legislation, a trans woman is a woman. Yes, it is confusing, but this is where we are.

The EHRC interim update said it would describe "the main consequences of the judgement". It then went into extraordinary detail on toilets. This is bizarre. The Supreme Court never mentioned toilets - not once, anywhere, in their 88 page judgement. And, crucially, toilets actually fall under a different piece of legislation.

Legally, there are two different kinds of toilets: toilets at work, which are provided by employers, and toilets in public, which are provided by businesses and public services - restaurants and libraries and the like. In practice most toilets you will ever use outside of your home will fall into the first category, because most public toilets will be used by staff as well as customers. Where do the baristas in Starbucks go to the loo, for example? In the same place the customers do. So these are legally classified as toilets at work.

The rules on toilets at work are found in regulation 20 of the Workplace Regulations 1992. It states that "separate rooms containing conveniences" must be "provided for men and women". This is what led the EHRC to state that "in workplaces, it is compulsory to provide sufficient single-sex toilets" and that "trans women (biological men) should not be permitted to use the women’s facilities".

The problem is that the Workplace Regulations 1992 is a completely different piece of legislation to the Equality Act. And therefore the words 'man' and 'woman' do not refer exclusively to biological sex. They come under powers in the Gender Recognition Act and include trans people in whatever their adopted gender is. This is a very significant problem for the EHRC position, because it itself recognises that the Supreme Court ruling refers only to the Equality Act.

This is one of the key objections raised in the Good Law Project's legal challenge. You should read the rest for yourself: it is tightly argued, literate, thorough and forensic. It has the kind of unmistakable legal swagger you see when an author is feeling very confident about their position.

This is about as damning a failure of an equality body as you can imagine. Instead of protecting people's rights they are actively trying to destroy them. But actually, there is another failure, of similar magnitude, which the EHRC is committing at the same time: it is failing to offer organisations reliable information about how to comply with legislation.

If a business was to follow the EHRC interim update, they would be highly vulnerable to a legal challenge from a trans employee. They are likely to have contradicted the Workplace Regulations 1992, as interpreted by the Gender Recognition Act. They are likely to have contradicted Article 8 and/or Article 14 of the European Convention on Human Rights. They are likely to have contradicted European Court of Human Rights case law, which guarantees trans peoples' "personal development" and "physical and moral security". And even if they provide mixed-sex facilities, they are likely to have contradicted human rights jurisprudence, which prevents trans people being treated as "a member of a 'third sex'". Those businesses which took the EHRC seriously would find themselves in a more vulnerable legal position than those which did not.

This is what happens when you take a public body with crucial responsibilities and turn it into a culture war campaign organisation. You betray a minority group which needs protection. But you also leave British businesses exposed to ruinous legal challenges.

This situation is an affront to the rule of law, at a time when we urgently need to defend it. It is simply not acceptable to have a situation where businesses do not know how to legally follow the law on really rudimentary matters like toilet provision. It is not acceptable that we have committees of MPs in a state of bafflement about the implications of a court decision and the chair of the relevant public body unable to speak in clear language about how they might understand it.

What we are seeing here is the corrosion of the shared understanding upon which the rule of law operates. And a great part of the responsibility for that lies with the EHRC.

With any luck, this will be the nadir. The reaction of the MPs on the women and equality committee suggests that we are reaching a political tipping point and patience with this clown-show is finally running out. Falkner is not a serious person. And she is not running a serious organisation.

Odds and sods

My i column this week was on Rachel Reeves' spending review, where I was actually fairly gushing. This week was the final episode of Season Seven of Origin story - the end of our Martin Luther King episodes. Culturally, I have been playing MarioKart and nothing else. The new Rainbow Road track is spectacular. If you're at the Humanist Convention in Sheffield this weekend come say hello - I'll be there all weekend and doing a talk on the Saturday. If not, then what are you even doing with your life?

Oh and this is the second week of the Striking 13 podcast. If you want to hear this column read out loud - complete with all sorts of errors as I bicker with the missus, correct typos, edit my copy in real time, and generally conduct myself with a complete absence of basic professionalism - you can access it by becoming a paid subscriber. Oh and you’ll get the warm glow of knowing that you are helping to keep liberal journalism alive and free to read, for everyone.

Cheers all. See you next week.