LGBT+ Humanists statement on EHRC’s draft Code of Practice

LGBT+ Humanists has issued the following statement in response to the EHRC’s new draft Code of Practice for services, public functions and associations:

Human dignity is at the heart of the promises of equality and human rights laws. The Equality and Human Rights Commission’s draft Code of Practice is meant to help organisations understand how to apply those laws in practice. However, we are deeply concerned that the Code does not sufficiently guide organisations to uphold the rights and dignity of transgender people, and risks leaving even the most inclusive organisations at a loss as to how they may lawfully continue to offer their services as they have always done so.

The Gender Recognition Act (GRA) enacted over twenty years ago, promised transgender people with Gender Recognition Certificates (GRCs) legal recognition and associated protections based on their legal sex. Since then, the Supreme Court has said that this does not apply to the Equality Act, under which transgender people must be treated as members of their pre-GRC sex. As we said at the time of that judgment, the ruling must not be deployed to further erode transgender people’s rights and freedoms at a time when they face continued hostility. This draft Code of Practice falls short of that requirement.

Across services, associations, charities, and sport, the Code gives repeated attention to when transgender people may be offered a separate “third” space, or excluded altogether. It provides far less practical guidance on how organisations may lawfully continue to include transgender people. It identifies the potential disadvantages transgender people may face, but does not adequately explore the routes available to prevent or mitigate that disadvantage such as positive action or proportionate exceptions. The result is a Code that risks making exclusion feel legally safer to organisations than inclusion.

We are also concerned that the new draft Code has no clear reference to the qualified nature of the right to freedom of religion or belief (FoRB), despite this being a clear feature of the former Code, which was in force for over a decade. FoRB, like freedom of expression, is a fundamental right, but both rights are limited by the rights of others. LGBT+ Humanists has a long history of challenging the misuse of religion or belief to justify hostility towards us. We know what it is like for intolerance to be dressed up as conscience, including in arguments against same-sex marriage or inclusive relationships and sex education in schools. We’re concerned that the new draft Code places too much weight on whether an ‘alleged harasser’ is manifesting a religion or belief, without sufficient clarity about protecting other rights and freedoms. Neither FoRB nor freedom of expression gives permission to harass, intimidate, humiliate, or degrade someone because of their identity or who they love.

These concerns make it clear to us that the draft Code is unworkable in practice, especially for organisations committed to serving and including transgender people, as human rights law obliges them to do. If the Code is a true reflection of the current law, then the law itself is failing to uphold the human rights of transgender people. This draft Code of Practice therefore exposes the growing tension between the promise of the GRA, the Equality Act, and the effect of the Supreme Court judgment. We urge parliamentarians to resolve this tension and uphold the principle that inclusion is the starting point, not the exception.