Good Law Project Appeals Failed Review of EHRC Guidance

Key Takeaways

• High Court upheld EHRC guidance on trans‑inclusive facilities
• GLP challenges guidance for alleged legal errors and omissions
• Appeal focuses on “absolute” statements lacking material caveats
• Outcome could reshape liability for single‑sex service providers
• Standing issue may limit GLP’s ability to appeal

Summary

The Good Law Project (GLP) has lodged an appeal against the High Court’s dismissal of its challenge to the Equality and Human Rights Commission’s (EHRC) interim guidance on trans‑inclusive single‑sex facilities. The court affirmed that the guidance correctly interpreted the Supreme Court’s For Women Scotland ruling, finding no error of law. GLP argues the guidance contains absolute statements that omit material qualifiers, raising a standing issue for the appeal. The outcome could affect how organisations manage liability under the Equality Act and related regulations.

Pulse Analysis

The Equality and Human Rights Commission’s interim update interprets the Supreme Court’s For Women Scotland decision, defining "man" and "woman" in biological terms for the Equality Act 2010. By classifying facilities that admit trans women as mixed‑sex, the guidance aims to help duty‑bearers navigate discrimination risk under both the Equality Act and the Workplace (Health, Safety and Welfare) Regulations 1992. This legal framing has become a reference point for organisations seeking clarity on how to structure changing rooms, toilets and other gender‑segregated services while remaining compliant with European Convention on Human Rights obligations.

In the High Court, Justice Swift concluded that the EHRC’s statements were not erroneous, emphasizing that guidance may rest on general factual premises without exhaustive caveats. GLP’s appeal contests this approach, arguing that absolute language without material qualifiers constitutes a legal omission. Their contention hinges on whether the guidance should explicitly delineate circumstances where a trans‑inclusive facility might still qualify as single‑sex, thereby avoiding the need to open it to all opposite‑sex users. The court’s refusal to mandate such granular qualifiers underscores a tension between the need for clear, actionable guidance and the desire for exhaustive legal precision.

The broader implications extend to any entity operating single‑sex services, from schools to healthcare providers. A ruling that narrows the scope of permissible guidance could increase litigation exposure, prompting organisations to seek bespoke legal advice rather than rely on EHRC statements. Conversely, upholding the current guidance reinforces a pragmatic approach, allowing duty‑bearers to mitigate risk through established best practices. Stakeholders should monitor the appeal’s progress, as its resolution may influence policy development, compliance strategies, and the balance between trans‑inclusion and sex‑based discrimination claims.