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Trans activists demand transparency as EHRC submits ‘bathroom ban’ report

The UK’s Equality and Human Rights Commission (EHRC) has shared an updated “code of practice for public services, public functions and associations“. The group produced this document in response to a Supreme Court ruling on the definition of sex in the Equality Act 2010. Significantly, this document will advise on which bathrooms trans individuals may use.

The latest update follows an “interim update” from the EHRC which Green MP Carla Denyer branded “harsh and ill-considered”, as it created a situation in which transgender people potentially couldn’t use any public bathrooms. With the update expected to “closely reflect interim advice” according to the Guardian, many are worried that transgender individuals will now be restricted from public places and places of work. One such group ringing the alarm is the Trans+ Solidarity Alliance (TSA):

“This is an emergency” say trans people

The message from the TSA reads:

The EHRC’s final draft Code of Practice has been submitted to government. The decision is now with politicians as to whether to sign a trans bathroom ban into law.

This is an emergency.

The time to act is now.

The EHRC has approached this process with one goal – reducing the human rights of trans people in this country. It has rushed through 50,000 consultation responses with the help of AI, subverting our Equality Act and turning it into a trans bathroom ban.

The Good Law Project has also commented on the EHRC’s use of AI, noting in July:

In less than six weeks, over 50,000 people sent their submissions. Good Law Project supported over 2,500 people to tell the EHRC what the impact of the guidance on their lives would be.

But the EHRC has decided to ignore some of them. The commission has confirmed that it won’t read all of the consultation responses. Instead of reviewing all the submissions, AI will determine whether people’s stories will be heard. They’ve essentially opened the door to trans voices, only to close it in their faces again.

The EHRC never took the consultation seriously: they proposed an unrealistic two week window, they published transphobic interim guidance in the middle of it and then refused to consult on their legal position. Now, they’re refusing to read responses they did get. This wasn’t a consultation, it was a joke.

The EHRC defended its use of AI, arguing:

Our use of supervised AI technology alongside expert legal analysis is a responsible and widely-used approach that ensures we can give proper consideration to all responses whilst delivering the guidance that public bodies urgently need.

AI is controversial because of its tendency to ‘hallucinate’, which is a technical term for when it generates false information. AI hallucinations are especially problematic because these tools will not necessarily announce that they have hallucinated, and in some instances will not confirm that they have even when questioned.

“It’s up to Government what happens next”

The message from the TSA continues:

It’s up to the Government what happens next, Bridget Phillipson [education secretary and women & equalities minister] could fix this mess tomorrow.

This is in reference to the fact that Phillipson is the politician who decides whether to accept the guidance. The TSA continued:

Waving this through… would be Labour’s Section 28 moment and define their legacy on LGBT+ rights.

‘Section 28’ was a discriminatory law against LGBTQ+ people which Law Society Council member Jonathan Wheeler described as “state sponsored homophobia”. The law prevented local authorities from ‘intentionally promoting homosexuality’, which in practice resulted in a ban of any mention of LGBTQ+ people. Lawyer Helen Randall wrote of it:

Everyone had two separate lives. Being LGBTQ+ at that time was something everyone I knew hid from employers as Section 28 blighted the public’s view against LGBTQ+ people, so it impacted on lots of things in our lives. This resulted in lots of mental health issues, including depression, loneliness and, sadly for the LGBTQ+ community, even suicides, plus of course the constant fear of being fired.

TSA finished by saying:

We have to fight this – and bring transparency and democracy to this process rather than allow rights to be taken away behind closed doors.

We all need to see what the EHRC has created and Parliament needs to be able to scrutinise it properly with a free vote, not have it gain ministerial approval in secret.

Tell your MP to stand up for trans people’s lives.

“Difficult for duty bearers”

The EHRC’s outgoing chair Kishwer Falkner has expressed doubt that even this latest advice will provide clarity or workable solutions, as reported by the Guardian:

Speaking on Friday morning, Falkner, who departs the role in December, said she accepted it would not necessarily be easy for public bodies to turn the guidance into practical rules and guidelines.

“I think it’s going to be difficult for duty bearers, service providers, to adapt a ruling which is quite black and white into practical steps according to their own circumstances and their own organisation, which is why we’ve always emphasised they should take their own advice as well as adhering to our code,” she told BBC Radio 4’s Today programme.

Falkner, a crossbench peer, said of the advice, which has a statutory basis: “Everybody I speak to, every institution I speak to, says: ‘Can you tell us what we’re supposed to do?’ That’s wrong … they should have been doing it anyway.”

The Good Law Project has announced it is likely to challenge the EHRC guidance:

Scottish Green co-leader Ross Greer also spoke on the development:

Greer was referring of the many cis women who have been harassed in bathrooms and other locations because they were mistaken for trans women.

Keir Starmer praised the interim advice in April, claiming it provided “real clarity”, despite the confusion which arose as a result of it. Starmer has also said he does not believe trans women are women.

Featured image via The Independent

By Willem Moore

This post was originally published on Canary.