The Recent Controversies of the Equalities and Human Rights Commission

The British equalities watchdog, the Equalities and Human Rights Commission (or EHRC for short), have been under fire from many progressive and activist groups in recent months. On the EHRC’s own website, they put their values front and centre, stating that they exist for the purpose of ‘promoting and upholding equality and human rights ideals and laws across England, Scotland and Wales’. But how accurate is this statement?

What is the EHRC?

The Equalities and Human Rights Commission is a statutory non-departmental public body which was established in 2006 with the aim of helping maintain the human rights of British citizens by challenging discrimination and promoting equal opportunities. The EHRC website also proudly proclaims that it ‘operates independently’, a statement that many have called into question. Many people question how independent an organisation can be when its Commissioners and its Chair are appointed by a government minister (the Minister of Women and Equalities to be specific). Since it has its most important roles filled by people chosen by a government minister (who themself is chosen by the Prime Minister), many people wonder how independent the EHRC can really be, and whether it can be trusted to prioritise the needs of the people or if it will prioritise the needs of the UK government.

This controversial fact of how the EHRCs Commissioners and Chair are chosen is not the major issue it is in hot water for, but, as we will discuss later, it may be a contributing factor as to why the EHRC is currently in the middle of controversy- because many people believe the organisations recent issues involving transphobia are coming from the top down.

What is the issue?

The EHRC has come under fire from progressive and activist groups, such as the charity Stonewall, and many progressive news outlets, such as PinkNews, who flag allegations of transphobia within recent statements from the EHRC. There are two notable events – the EHRCs response to Scotland’s proposed reformations to the Gender Recognition Act and its response to plans to legislate the banning of conversion therapy in the UK. Because of how much there is to say on each topic, they deserve to be discussed one at a time.

Scotland’s Gender Recognition Act

In Scottland, there is a proposed bill to reform the Gender Recognition Act (GRA) in order to make it easier for people to receive a Gender Recognition Certificate (GRC), which is a document which makes it so a person is seen as the gender on the certificate in the eyes of the law, and which allows the person to be able to apply for an updated birth certificate with their new gender markers. This is an extremely simplified definition however, and much more detail on what a GRC is can be found in official UK government documentation.

The bill which the Scottish government is considering would make it drastically easier for a person to receive a gender recognition certificate. Its major proposals are that someone should not require a diagnosis of gender dysphoria (while current requirements require a diagnosis) and a reduction in the time ‘lived in their acquired gender’ from two years to only three months. These changes have been celebrated by some and criticised by others (with criticism coming from people saying it goes too far and people saying it does not go far enough).

The EHRC’s response to the bill was a letter to the Scottish government asking it to pause its plans for reforming the GRA. Their letter can be read publicly. The letter proclaims the EHRC supports Scottland improving major issues facing its trans population, saying they ‘recognise that many trans people have criticised the current process to obtain a GRC as being intrusive, medically-based, bureaucratic, expensive and lengthy’ and that they ‘are also concerned about the unacceptably long waiting times for gender identity services – in some cases over five years for an initial appointment’.

However, most people are concerned with the earlier part of the email where the EHRC expresses fear over what Scottland’s changes would do, believing the new criteria would open up access to GRCs to those who would abuse it and are worried about ‘the potential consequences include those relating to the collection and use of data, participation and drug testing in competitive sport, measures to address barriers facing women, and practices within the criminal justice system, inter alia’.

Many people believe that the EHRC’s concerns about simplifying the criteria to obtain a GRC stand in opposition to their recognition that the current process is severely lacking (as well as other proclaimed support for trans issues). Many people and groups have raised great concerns about the line where they say ‘we consider that more detailed consideration is needed before any change is made to the provisions in the Act’ because taking this suggestion on board would lead to the bill being pushed back even further from being put into law. The LGBT charity Stonewall published a statement which said that ‘these statements the EHRC is calling for further delays to legislation that our communities have been waiting on for many years’.

Stonewall’s concerns are not unique to themselves however, many news outlets, such as the Guardian, have published their own articles giving voice to many people who are concerned about the EHRC’s statement, quoting many people who believe the EHRC’s letter is “deeply troubling” and “failing to stand up for equality for trans people”. Most LGBT activist groups and many progressively minded people share this sentiment that the EHRC is failing trans people.

On the other hand, there are many ‘gender critical’ sites and groups who have spoken out in support of the EHRCs statement. These are groups which, for one reason or another, either dislike trans people or claim to have concerns with what they call ‘trans ideology’. Many of them have issues with what they perceive as the impact of legislation to protect and support trans people, believing that lax laws and self-identification will lead to abuse of the system and make spaces less safe for vulnerable women.

There are many people who seem to be arguing in the conversation despite not being fully educated on the topic of how the Scottish Government is handling the bill. For example, during our research we discovered For Women, who claimed that ‘the [Scottish] Government spoke only to groups it funds and agrees with. It spoke to no women’s groups’. However, if you look at the Scottish Government webpage about the consultation for the bill, they compile a multitude of responses which include not just LGBT groups, but various feminist groups (of both gender critical and trans supportive leaning), religious groups and universities. Even For Women’s own response statement can be found on the Scottish Government website.

Conversion Therapy

Another major controversy that the EHRC has gotten itself into is its response to the UK government’s consultation on banning conversion therapy. Recently, the UK government has proposed legislation which could ban conversion therapy, and many groups have expressed concern with the response of the EHRC. In a very emotionally charged article, PinkNews corroborates the concern of major activist groups and LGBT charities into one article.

Early in the article, the author accuses the EHRC of suggesting that prohibiting trans conversion therapy ‘should be delayed even further so more research can be done’ and scorns the idea that there is not enough research into the effects of conversion therapy on trans people.

Early on in the EHRC document on conversion therapy, the EHRC says that ‘[g]iven the documented lack of evidence about conversion therapy in relation to being transgender, recent attention and litigation on the implications of medical and surgical transition, and the ongoing NHS-commissioned independent review of gender identity services for children and young people led by Dr Hilary Cass OBE, we consider that these matters require further careful and detailed consideration before legislative proposals are finalised and the implications of them can be fully understood’. This snippet is directly quoted in the PinkNews article, who argues that other groups have evidence of the effects of conversion therapy on trans people.

Curiously, however, later in the EHRC document it itself states that there is a ‘lack of evidence that conversion therapy is effective in changing a person’s sexual orientation or gender identity’, a line which admits to the fact that there is enough research into the effect of conversion therapy on trans people. This is a massive contradiction to the claim that there is too little evidence to ban conversion therapy for trans people, a contradiction which does not seem easily explained.

This initial issue with the EHRC document comes early on, it proposes that more research needs to be done on the effects of conversion therapy on trans people, something which has angered many activist groups and LGBT charities for not understanding that conversion therapy is a danger to gay people it is a danger to trans people as well. This however is not the only controversy generated by document, there is another aspect of it which has also caused frustration to people – its suggestion that over 18’s should be able to consent to conversion therapy.

Within the EHRC document, the idea of consent initially appears during its long response to the question ‘Do you agree or disagree that the government should intervene to end conversion therapy in principle?’. In this section, consent is initially brought up to add to a government point about over 18’s being able to access conversion therapy.

They say that ‘for consent to be valid in the context of conversion therapy, it must be voluntary and informed, and the person consenting must have the capacity to make the decision’, meaning that ‘the Commission’s view is that a provider of what might be considered conversion therapy should supply the individual with information about the likely effectiveness of this treatment, and satisfy themselves that the person fully understands its implications and is consenting of their own free will, before valid informed consent can be deemed to have been given’.

In short, the EHRC is saying that someone should have the choice as a free individual to undergo conversion therapy if they so desire, but only if they are actually in a position to make a choice which is informed. Despite not campaigning that it should be allowed, it already is, the EHRC is attempting to ensure someone can only consent if they are in a position to properly give consent. Many people have an issue with the EHRC’s response, with PinkNews saying that ‘[a]nother hotly criticised loophole in the government’s ban, a clause to allow people to give “informed consent” to conversion therapy, wasn’t quite blasted by the EHRC, as many, many activists have”.

Behind the Scenes

The issues of the EHRC and its allegations of transphobia are not limited to just these two events, however. VICE has published an article in which they speak to anonymous employees and former employees of the EHRC which shows how the transphobia of the EHRC comes from the top down. Due to the strict anonymity of the VICE article, never naming names or job roles of those giving their testimonies, it is difficult to verify whether all the voices in the article are genuine or not. There is no legitimate reason to believe that VICE is lying, or that these individuals were lying to VICE however. In context of what we have already learned, their stories likely be true. Of all the content we have referenced in this post, the VICE article is the one most deserving of its own read because we will never be able to cover everything which it has to say.

The VICE article opens by stating that the situation within the EHRC is so dire that ‘morale among many employees still there is described as extremely poor. Some staff are considering strike action’ and that many people have left their positions without having any jobs lined up. VICE says they have three whistle-blowers who are all worried about ‘an “anti-LGBT” culture being adopted by senior leaders at the organisation’.

Among the fears of staff are reports that ‘board members changing their work – making the documents “transphobic and seriously inaccurate”’, a terrible act on its own which is even further worsened by reports that anyone who spoke out ‘were locked out of laptops and disciplinary action was taken against them’. The article quotes an anonymous ex-employee who said that “upcoming publications and guidance pushing for trans rights being changed – or completely scrapped and shelved permanently”. They also said that while this was going on the Board was meeting with anti-trans groups, something which VICE has also investigated in great detail.

When confronted on the issue by VICE, a EHRC spokesperson denied the allegations of transphobia within the organisation, responding that the EHRC is proud of its diverse workforce and ability to protect peoples rights, adding that “[w]here those rights may conflict, our role is to advise on striking an appropriate balance”, a statement which could be considered a red flag by many, as it calls into question what does the EHRC consider a conflict of rights? Many people would say that giving a minority group more rights never conflicts with another groups rights and wonder whether the ’rights’ that are in conflict are one persons right to live and another person’s belief they should be allowed to hate the other person.

Many of the individuals giving statements to VICE say that the EHRC’s issues of transphobia began in February 2021, when Baroness Kishwer Falkner was appointed as the organisation’s Chair. VICE says that an ex-employee had told them “that Falkner had personally changed EHRC publications about trans people, making the documents more critical of gender identity, and actively going against the organisation’s own guidance to protect people’s rights based on gender reassignment”. VICE says they attempted to access the amended documents using the Freedom of Information Act, but their requests were denied.

This is only some of the responses given and issues flagged in the VICE article, the whole article presents an onslaught of anonymous worries and issues from both current and former employees of the EHRC. If the statements can be given proof that they are from genuine employees and ex-employees, it could be a serious blow to the reputation of the EHRC.

Additional VICE Investigations

Between initially writing and publication of this article, VICE has once again published a damning article against the EHRC, one important enough that we needed to add an additional section to this article. A recent VICE article states that VICE was given unpublished guidance pack by the EHRC dated to late 2021. As of writing this however, VICE has only discussed the document and not released it to the public.

VICE says that in the guidance document the EHRC “advised businesses and other organisations such as shops, prisons and gyms to “protect women” by barring most trans people from their single-sex spaces, including toilets, wards and changing rooms”. VICE says that according to this leaked guidance, a trans person should be barred from using the spaces of their gender unless they have a GRC, something that only a tiny amount of trans people have. This is a position that is incredibly impractical and a guidance which would bar a vast majority of trans people from using those spaces.

Because only an estimated around 1% of trans people in the UK have a GRC, this decision would be a massive problem for the UK’s trans population. It could be argued that the decision would not be a bad one if it was much easier, less intrusive and took less time to obtain a GRC- something which the EHRC is currently opposing in Scottland. But at the same time, many would argue that it does not matter if one could be easily and freely obtained because any requirement of a GRC to merely use a space is a violation of a person’s rights. This shows that the EHRC is actively taking actions which make things worse for trans people in the UK.

But also worth noting is that the guidance is impractical. If an organisation wants to follow this guidance, they would have to ask people for a document proving their birth sex and then, if their birth sex is different to their gender, ask for a GRC or be unable to use the service or space. It would be impossible to expect everyone in the country to carry around such documents to prove they should be allowed to access a space and requiring people to present such documents can be considered invasive.

Conclusion

From the EHRC’s responses to the Scottish GRA reform bill and the UK ban on conversion therapy legislation, to the large amounts of allegations of anti-LGBT behaviour (or mostly just anti-trans behavior) from high up in the EHRC, it is clear that the EHRC is struggling with internal transphobia. Their unpublished guidance is clearly transphobic when in tandem with how it is treating GRA reforms. Someone could attempt to argue that since it was not published there was no damage done, but that would ignore the issue of how could a human rights organisation find it as something acceptable to even write in the first place.

An important take away from this is that people challenging and discussing any slips in the organisation’s attempt to uphold equal rights is extremely important, as it can help it improve and change for the better or be removed and replaced with something better, rather than continuously getting progressively worse while people continue to argue that it is not that bad while people’s rights slip away. The Equalities and Human Rights Commission has a duty to uphold human rights and equality, no matter what your individual view is on the topic, it can only continue to do that if its positions on topics are challenged.



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