On 3rd May 2023 Stonewall and a group of organisations wrote to the Global Alliance of National Human Rights Institutions (GANHRI) accusing Britain’s equalities watchdog, the Equality and Human Rights Commission, of being a “failed institution” which is “actively harming trans people”.
This is the third time Stonewall has tried to get GANHRI to censure the EHRC, and this time it has the UN Independent Expert on Sexual Orientation and Gender Identity Victor Madrigal-Borloz singing the same tune.
Sex Matters has written a letter in response together with 24 organisations. We call on GANHRI to support Great Britain and the EHRC in protecting civic space and everyone’s human rights:
“We hope that as international institutions and experts on different aspects of human rights you will stand up for the principles of protecting everyone’s human rights and of engaging in constructive dialogue, and not take the accusations about the UK’s national human-rights institution at face value.”
A timeline of intimidation
GANHRI is the international body which accredits national human rights bodies against the UN’s Paris Principles. As well as assessment, its mandate is also to protect human-rights institutions from threats, reprisals and acts of intimidation, including physical attacks and smear campaigns.
While these threats most often come from the state, they can also come from non-state actors. We have compiled a timeline of the intimidation directed at the EHRC.
A log of efforts to undermine the EHRC doing its job
Several other regulators and Whitehall departments have also left the scheme, mainly citing “value-for-money” considerations.
Karon Monaghan KC, representing the EHRC, argues that the original tribunal the employment judge “adopted the wrong approach when determining whether the Claimant’s [‘gender critical’] belief fell within the scope of s.10 of the Equality Act”.
“… We are frustrated that you then chose to intervene in a case to say that so-called ‘gender critical’ beliefs should be a protected philosophical belief.
“It was a kick in the teeth to trans people to see the EHRC appear to put their organisational weight behind a movement that has only contributed to rising hate for trans people in communities, creating a policy environment where it is harder for trans people to access their rights. That the EHRC chose to add their weight to this intervention has sent a deeply damaging message to trans people about their validity and worth. This intervention has lost the trust of trans people and LGBTQ+ people more broadly.”
Kishwer Falkner says: “Defending the right to believe that sex is immutable in no way impacts on our commitment to uphold the rights of trans people.”
It raises concerns about the potential consequences of self ID and says:
“We consider that more detailed consideration is needed before any change is made to the provisions in the Act. 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.”
EHRC publishes cautious position on proposed legislation banning conversion therapy
It recommends that legislation should initially focus on banning conversion therapy attempting to change a person’s sexual orientation and that legislation to ban conversion therapy attempting to change a person to or from being transgender should follow “once more detailed and evidence-based proposals are available which can be properly scrutinised”.
It says the two statements “are extremely damaging and cannot be supported in any circumstances” and “EHRC can no longer call itself a true human rights organisation.”
Liberty calls for the EHRC’s status as an NHRI to be reviewed
“For the EHRC to make such a damaging intervention calls in to question whether it is serving its purpose and Liberty supports the calls for the EHRC’s status as a national human rights institution (NHRI) to be reviewed.”
Stonewall demands a review of the EHRC’s accreditation as an A-status National Human Rights Institution
“We believe the EHRC is no longer fit for purpose.”
VICE reports that “EHRC met privately with anti-trans groups”
VICE complains that the EHRC held meetings with gender-critical groups Fair Play for Women and LGB Alliance.
Signatories include the Good Law Project, Liberty, Gendered Intelligence, TransActual, Mermaids, Trans in the City, GIRES, Sparkle, Trans Safety Network, LGBT Consortium, LGBT Foundation, Equality Network, LGBT Youth Scotland, Galop, Feminist Gender Equality Network, Steph’s Place UK, and the Outside Project.
“We believe that recent statements made by the Equality and Human Rights Commission (EHRC), Great Britain’s NHRI, indicate that they can no longer be considered compliant with the Paris Principles, and are no longer fit for purpose as a National Human Rights Institution.”
EHRC says: “We are pleased that the Sub-Committee on Accreditation assessed evidence of our independence and effectiveness and upheld our position, declining a special review of our work.
“As we launch our new strategy, we are reaching out to organisations that have been critical of the EHRC, encouraging them to put aside past disagreements and to work with us and other like-minded organisations to protect everyone and to achieve a fairer society for all.”
The guidance confirms that it is lawful and legitimate to provide female-only spaces and therefore to exclude men who identify as women from them.
“This new EHRC guidance is appalling and harmful. It encourages bigotry and discrimination. Its ‘examples’ include invitations to organisations to blanket ban trans women from exercise classes and women’s toilets on a ‘biological’ basis.” Trans Legal Project
Translucent submits a 61-page complaint to GANHRI
Translucent (previously called “Steph’s Place” and a signatory of the Stonewall complaint to GANHRI) makes a new complaint including accusations of “collusion with ‘anti-trans’ groups and individuals”.
Together with the Good Law Project and 30 other civil-society organisations, Stonewall’s lawyers send a letter and submissions to GANHRI, calling for the EHRC to lose its A status. It complains that EHRC Chair Kishwer Falkner “has spoken in support of anti-trans ‘gender critical’ beliefs and appears to have liaised disproportionately with ‘gender critical’ groups in her capacity as Chair” (citing the VICE article of 2nd February 2022). It complains that “the EHRC is now, like the government, substantively out of step with mainstream civil-society organisations in its stance on equality and human rights” and again raises the EHRC’s position on conversion therapy, and its new single-sex services guidance.
Masked representatives of the anonymous group Pissed Off Trannies (POT) ceremonially deliver the urine to the EHRC offices in Westminster, London and stage what they described as a “piss-in”, leaving over 60 bottles of urine outside the offices of the Equality and Human Rights Commission and pouring urine over the entrance. One of the protesters pours urine over himself.
GANHRI re-accredits EHRC as an ‘A status’ organisation
This follows a routine assessment. The assessment report includes recommendations that the EHRC:
• widens its human rights protection mandate
continues to address human rights issues across all relevant areas
• cooperates with civil society organisations
ensures pluralism and diversity in its board membership
• advocates for formalising the selection and appointment process of our Commissioners
• advocates for amendments regarding the provisions for dismissal of Commissioners
• advocates for greater financial autonomy from central government
The UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity writes to the Scottish Government claiming that “legal recognition of gender identity” via self-identification is an “international human rights imperative”.
“A change to the Equality Act 2010, so that the protected characteristic of ‘sex’ means biological sex, could bring clarity in a number of areas, but potential ambiguity in others.
“Our response to the Minister’s request for advice suggests that the UK Government carefully identify and consider the potential implications of this change.
“Should they wish to pursue work in this area, we recommend detailed policy and legal analysis be undertaken, in compliance with the Public Sector Equality Duty and with due regard to any possible disadvantages for trans men and trans women.”
“This is not an institution that has listened to civil society, to the recommendations of the Subcommittee on Accreditation or to its own national committees. It is not demonstrating a commitment to the human rights of all persons, nor is it functioning in a pluralistic, independent and effective manner as mandated under the Paris Principles. It is a failed institution, it is harming the trans community in Great Britain, and it is undermining the status of independent human rights institutions and systems.
The letter is signed on behalf of Claire’s Trans Talks, Equality Network, Feminist Gender Equality Network, Gendered Intelligence, GIRES (Gender Identity Research and Education Society), Global Butterflies, Hidayah LGBT, Intercom Trust, Kite Trust, LGBT Consortium, LGBT Foundation, Live Through This, London Friend, Mermaids, Ozanne Foundation, Proud Trust, Sparkle – The National Transgender Charity, Spectra, Star Support LGBTIQ+, Translucent, Stonewall, The Outside Project, Trans Activism UK, Trans Actual, Trans in the City, Trans Media Watch, Trans Safety Network, and Yorkshire Mesmac.
As the timeline shows, the EHRC has been the subject of a protracted campaign by a group of civil-society organisations clustered around Stonewall – which is a powerful institution in the UK, influencing employment policies that cover 25% of the UK workforce, including until recently the EHRC itself and much of the public and voluntary sectors.
As Stonewall itself says in its annual report, the aim of the scheme is to “transform institutions”:
“We know that our work with governments, businesses and educational establishments fundamentally alters their practices and culture, and makes them agents of change for their partners, suppliers, customers – and wider society.”
The first time Stonewall complained to GANHRI was on 26th January 2022, after the EHRC published recommendations that more research and consideration was needed on plans for gender-recognition reform in Scotland and on a conversion-therapy ban related to gender identity. GANHRI dismissed these claims.
Stonewall resubmitted them on 1st June 2022 with a lawyer’s letter, supported by the Good Law Project (which is also leading the challenge against the charity commission, trying to have LGB Alliance’s charitable status removed).
GANHRI dismissed Stonewall’s submissions for a second time and the EHRC was awarded an “A” rating on 22nd October 2022.
Undeterred, Stonewall and associated organisations such as Translucent is trying one more time with what might now be seen as a vexatious complaint.
Stonewall’s third-time lucky approach may have been spurred by the extraordinary decision by the UN Independent Expert on SOGI to cut across GANHRI’s recent assessment and suggest that the EHRC is not operating according to its mandate.
Imagining human-rights obligations, and ignoring others
This is the second time Mr Madrigal-Borloz has tried waving the UN stick at the UK government.
On 16th December 2022 he intervened in the debate on gender-recognition reform in Scotland, sending a last-minute letter claiming that legal recognition of gender identity via self-identification is an “international human rights imperative” with which the UK government must comply. The Scottish Parliament’s Human Rights Committee invited him to address them – for a second time, having said that it had no time to hear from female users of women’s domestic-violence shelters. We wrote at the time that this claim was nonsense.
It seems that in the cold light of day the Scottish Government’s legal advisors agree, since there is no mention of Mr Madrigal-Borloz’s claimed international legal obligation in their response to the government’s S.35 order.
Misusing the mechanisms of the UN to try to bedazzle and bully lawmakers undermines respect for human rights and for independent human-rights institutions.
We hope that GANHRI will recognise that Stonewall does not represent the whole of UK civil society, and is against the pluralism that GANHRI seeks to foster. We hope it will speak up in solidarity with the EHRC, which is doing its job of protecting everyone’s human rights.