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Britain’s equality watchdog must be allowed to advise on trans laws, UK government says

Stonewall has questioned the EHRC's international accreditation three times
Stonewall has questioned the EHRC's international accreditation three times - Vuk Valcic/SOPA Images/LightRocket via Getty Images)

Britain’s equalities watchdog must be able to advise ministers on trans laws without “unnecessary intervention”, the Government has said amid a threat of a UN blacklist.

The Equality and Human Rights Commission (EHRC) is facing a “special review” of the international accreditation which gives it access to the UN’s Human Rights Commission and other UN bodies.

The investigation comes after Baroness Falkner of Margravine, the chairman of the  Equality and Human Rights Commission sent advice to the Business Secretary Kemi Badenoch, who is also the minister for women and equalities, which stated defining sex and “biological sex” would help to clarify the law.

The Global Alliance of National Human Rights Institutions (Ganhri) launched the review after a campaign by trans lobby groups led by Stonewall.

Revealing the investigation in this newspaper, Lady Falkner said that there had been a “targeted action by a group of campaign organisations”.

Mrs Badenoch had requested advice on the definition of sex in equality law from the EHRC. The Telegraph understands that the minister has full confidence in Lady Falkner and believes there is an attempt by activists to undermine the regulator.

A government spokesman said: “This review is a matter for the EHRC. However, it is right that the commission upholds its statutory and legal duty to independently advise the Government on the effectiveness of UK equality legislation without unnecessary intervention.”

The EHRC’s “A status” was only reconfirmed following a routine review last year. That accreditation had been due to last five years, and Lady Falkner said she was “surprised” that they were now facing scrutiny again so quickly.

Appearing on BBC Radio 4’s Woman’s Hour on Tuesday, Lady Falkner said that the EHRC is “required by law to advise the Government on issues where we are the regulator”.

They were informed of the special review in April and the “only controversial” thing that happened between the periodic review and that decision was a letter she wrote to Mrs Badenoch which recommended that clarifying the definition of “sex” to “biological sex” could bring clarity to equality law, she said.

‘Confusion’ in law

The law currently uses sex and gender interchangeably which has led to “confusion” around the balance of competing rights between women and trans women in issues including single sex spaces and sports.

The EHRC were asked by the minister for clarification, Lady Falkner said, adding that the review took six months, considered 150 pages of legal and policy advice and they spent 11 hours deliberating their final conclusion.

She said that the clarification of sex as biological sex as opposed to gender would bring human rights improvements, including allowing lesbians and gay men to have freedom to associate and improving the maternity rights for trans men.

But she noted that their advice on the issues around had put them on the “wrong side” of Stonewall who described the EHRC in an “antagonistic” way.

“The question we have to ask of Stonewall is what is it about their national human rights institution that they think that they cannot engage with us here in the UK on the ground but go externally to the UN to complain about us?” she asked. “Why do they feel that they need to escalate matters when we have been cooperating with them, consulting with them and working with them over all these years?”

Kemi Badenoch, centre, was advised by Baroness Falkner regarding trans law
Kemi Badenoch, centre, was advised by Baroness Falkner regarding trans law - Rory Arnold / No 10 Downing Street

Robbie de Santos, director of external affairs at Stonewall, said that they have “been engaging robustly and constructively with the EHRC over the years” and that it is “normal practice” for civil society organisations to engage with Ganhri.

He added: “Britain’s LGBTQ+ civil society and human rights organisations have expressed their concern about the political independence of the EHRC and its approach to trans people’s rights for some time.”

Mr De Santos welcomed the special review, saying that “Britain needs a more robust and independent human rights watchdog” and that he hoped the investigation will give the EHRC “scrutiny and recommendations it needs to play the part our communities deserve”.

Stonewall times three

It is the third time that Stonewall has led a coalition of trans lobby groups, including Mermaids and the Good Law Project, in questioning the EHRC’s international accreditation.

Any change to the accreditation would put the EHRC behind similar watchdogs in countries which have a poor record on human rights including Iraq, Qatar, Colombia, the Democratic Republic of Congo and Zimbabwe.

Countries which have previously been stripped of their A status by Ganhri include Azerbaijan, Mauritania, Nicaragua, Paraguay and Afghanistan. Russia’s A status was only suspended in March of this year pending investigation.

Helen Joyce, director of advocacy for Sex Matters: “It is clearly preposterous to equate the EHRC with the equality watchdogs in Afghanistan and Russia, and to rank it behind those of Iraq and Qatar in terms of its record on human rights.

“This is the latest in a series of targeted attacks on the EHRC by trans activist groups that realise they are losing their grip in the UK.

“Lady Falkner’s advice to the equalities minister provided important clarity on what sex means in law. It is ludicrous to suggest that asserting biological reality is a breach of human rights, when in fact it is gender ideology that endangers the human rights of women, gay people and children.”

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