UK Government’s Treatment of Trans People Faces Human Rights Scrutiny

The treatment of transgender individuals in the UK may violate the European Convention on Human Rights (ECHR), according to a leading human rights expert. Michael O’Flaherty, the Commissioner for Human Rights at the Council of Europe, expressed concerns that recent guidance stemming from a UK Supreme Court ruling could place trans people in an “intermediate zone,” making it unclear which gender they belong to.

In a letter addressed to Sarah Owen, chair of parliament’s women and equalities committee, and David Alton, chair of the joint committee on human rights, O’Flaherty noted that UK lawmakers often view the rights of different groups as a “zero-sum game.” He warned this perspective contributes to negative narratives that frame the protection of trans rights as a threat to the rights of others.

O’Flaherty highlighted that the government’s approach risks leading to “certain inferences” from the Supreme Court’s judgment, possibly resulting in the exclusion of trans individuals from various public spaces. He stated, “This may severely infringe on their ability to participate fully and equally in society.”

Under the new guidance, trans individuals may find themselves compelled to publicly disclose their gender identity to access services, which could breach their right to privacy as outlined in Article 8 of the ECHR. O’Flaherty emphasized that being forced to reveal their sex assigned at birth could increase their vulnerability to harassment and violence.

While stressing the importance of addressing violence against women and girls, O’Flaherty criticized the current debate on trans rights for excessively focusing on limiting the human rights and freedoms of trans people.

In response to the Supreme Court’s ruling earlier this year, the Equality and Human Rights Commission (EHRC) has drafted new guidance for companies and public bodies. This guidance specifies that services designated for “only women and trans women” or “only men and trans men” do not constitute separate-sex or single-sex services under the Equality Act (2010).

After a consultation period over the summer, the EHRC submitted its updated code of practice for approval by Bridget Phillipson, the women’s and equality minister. Should she reject the draft, the EHRC may be required to redraft it. If implemented, the guidance is expected to instruct schools, hospitals, leisure centres, and cinemas to prohibit trans women from using single-sex facilities, including toilets and changing rooms.

Numerous organizations have voiced their concerns regarding the EHRC’s proposals. Major companies such as Ben and Jerry’s and Lush have warned that the guidance is “unworkable” and could inflict significant economic harm. In a letter seen by The Independent, these firms stated, “Any final code similar to this draft would tell organizations that we must adopt practices that are incompatible with modern business values, create unworkable operational challenges, and cause significant economic harm.”

O’Flaherty also addressed Shabana Mahmood, the Home Secretary, during his visit to the UK, cautioning that the government’s decision to designate Palestine Action as a terrorist group and a planned crackdown on protesters wearing face masks could also infringe upon the ECHR.

As the debate over the rights of trans individuals and the implications of recent rulings continues, the UK government faces mounting pressure to ensure that its policies respect the rights of all citizens while promoting inclusivity and equality.