Our response to the LGBT Consortium's open letter

Published: 26 June 2021

Our Chair, Baroness Kishwer Falkner, has responded to the LGBT Consortium's open letter to us about our work on LGBT+ rights.

Dear signatories,

I am writing in response to your letter of 13 May where you outline disappointment in the work of the Equality and Human Rights Commission, relating to LGBT+ people’s rights and particularly our recent decision to intervene in Ms Forstater’s Employment Appeal Tribunal case.

As you will be aware, in 2019, an employment tribunal ruled that Ms Forstater’s belief that sex is biologically determined and immutable, was not a protected belief under the Equality Act 2010.

Our view is that the judge in the original tribunal failed to distinguish between the question of whether Ms Forstater held a belief that is protected, despite others finding it offensive, and the question of how she may have acted on that belief. When deciding if her belief was worthy of respect in a democratic society, it is our view that the Tribunal wrongly took into account the manner in which she expressed that belief, for example, on social media.

This is a subtle, but important distinction and it is our firm view that as a National Equality Body and National Human Rights Institution, it is our mandate to defend the rights of individuals to hold beliefs. Freedom of thought, conscience and religion is a fundamental right in our democracy.

The suggestion that in upholding freedom of belief we are “putting our weight” behind “gender critical beliefs” misrepresents our position. We are disappointed to see you use this line in your communications, as we fear this contributes to damaging misunderstandings about our reasons for intervening in this case. Defending the right to believe that sex is immutable in no way impacts on our commitment to uphold the rights of trans people.

We will continue to use our unique legal powers to find ways to clarify this area of law and hope that by doing so we can move this debate into a more respectful place. We would appreciate your support in flagging to us relevant cases where you feel our involvement could help to bring clarity to issues relating to trans rights.

As you will be aware, on 6 May we successfully challenged an application to judicially review our Equality Act Code of Practice and particularly our guidance that trans people should be able to access services for the gender with which they identify, unless there is legal justification to exclude them. This is an important case and, in defending our guidance in the strongest terms, we have defended the rights of trans people to access services which match their gender identity.

Other recent legal work includes signing a legally binding agreement to defend LGBT+ employees from harassment at a large employer in Burnley and challenging the NHS on their gamete storage policies. This resulted in NHS England issuing guidance to all CCGs reminding them of their duties as regards non-discrimination and drawing particular attention to the needs of trans patients.

We actively engage in policy influencing and advise Governments to further the rights of LGB&T people. Recently, we have engaged with the Government Equalities Office on plans to bring forward a ban on conversion therapy and welcomed a commitment to this in the Queen’s speech. We have repeatedly called for funding to be reinstated to tackle LGBT+ bullying in schools. Recently we have raised concerns around the impact of lockdown restrictions on domestic abuse with particular reference to LGBT+ people, have called for updates to the UK Government’s LGBT action plan and have funded research into social attitudes to trans people.

During our term as Chair of the Commonwealth Forum of National Human Rights Institutions, we have focussed on championing LGBT+ rights, working with international partners, business and civil society to support the work of human rights defenders across the Commonwealth.

The strength in the Equality and Human Rights Commission lies in our intersectional approach to tackling the biggest issues facing individuals and society. Our priorities are informed by robust analysis of evidence and we act where we can use our powers to tackle the most serious cases of inequality and have the greatest positive impact for the most people.

However, with increasing demands on our resources, and a statutory duty to protect nine protected characteristics, we, like other Arms Length Bodies, have to make difficult decisions regarding our strategic priorities. Our next strategic plan will be open for consultation this Summer and we hope that you will engage with the exercise in order to help promote and protect equalities and human rights for LGBT+ people.

Kind regards,

Baroness Kishwer Falkner

Chairwoman, Equality and Human Rights Commission

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