Better News from the EHRC?

Perhaps, perhaps, perhaps

jane fae
3 min readFeb 9, 2022

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Screenshot from website, May 2021

After putting up my somewhat dark-humoured piece on the EHRC yesterday, i spoke with a lawyer who argued that my point of view was, indeed, on the too dark side. Or is it?

Now read on.

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What my distinguished friend told me was as follows: “The EHRC has, in the past, produced a Statutory Code of Practice, which , even though subordinate to the actual text of the statute, has persuasive effect on a court of law. This guidance clearly says that trans women should be in women’s services.

“In addition, it produces non-statutory guidance for businesses, which can be found on its website.” So far so good.

They go on: “The EHRC stopped writing statutory codes of practice because the Tory government refused to lay them before Parliament, as the Act requires. I therefore consider it more likely that the EHRC will change the guidance on its website, which it updates fairly regularly.

“That is not persuasive to the court. The courts have to consider AEA v EHRC, which also says that trans women are generally allowed in women’s services, from the moment of deciding to transition- that is, by self-ID.

Finally, they add: “I don’t know what they will do, but what Falkner [the EHRC Chair] said is that they would issue ‘guidance’. There is a legal distinction between ‘guidance’ (not persuasive) and ‘code’, which is persuasive, and she should know that.

“I don’t know what they will do, but what Falkner [the EHRC Chair] said is that they would issue ‘guidance’. There is a legal distinction between ‘guidance’ (not persuasive) and ‘code’, which is persuasive, and she should know that

“If it went on the EHRC website that companies could exclude trans women from women’s loos if they got complaints, or if they ‘believed sex is real’, that would contradict the code, and not be persuasive in court. It might persuade transphobes, though, and they might start making demands. But it’s not quite as bad as legal arguments that we can be excluded.”

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jane fae

Feminist, writer, campaigner on political and sexual liberty who also knows a bit about IT, the law and policing. Not entirely serious…