(a) guidance is not law. It is guidance. EHRC codes of practice are issued under the Equality Act 2006, section 14. While they can (and will) be taken into account they are not determinative of legal position. Section 15 (4) makes that clear legislation.gov.uk/ukpga/2006/3/s…
(b) the EHRC interim update recommended that employers and duty bearers "must follow the law" equalityhumanrights.com/media-centre/i…
(c) the law in this case is found in the Equality Act 2010. The authoritative determination of the meaning of the language relating to sex, woman, and man in the 2010 Act is the decision of the supreme court in For Women Scotland Ltd v Scottish ministers [2025] UKSC 16
When a court reaches a decision on a question of law (such as on the meaning of legislation) the effect of that determination is retroactive. This follows from the declaratory theory of judicial law making whereby a judicial decision clarifies what the law is. The declaratory
theory is the normal approach in relation to judicial decision making, see for example Kleinwort Benson v Lincoln Council [1999] 2 A.C. 349 where the principle is explained in the speech of Lord Goff.
(d) cumulatively this means that disregarding the legal determination which is retroactive but has clearly applied since the date of the decision in FWS, pending a new code of practice, leaves a duty holder that does so at risk of legal action where they do not comply
This will be relevant, for example, to those duty holders who have public liability or other insurance which covers potential liabilities.
(e) much of the controversy is around the issue of self id. It was established that sex in the equality act was not based on self id in the first for women Scotland Ltd judicial review of the 2018 Act. The supreme court case is neutral on this, meaning this issue should have
Been dealt already by duty holders years ago
• • •
Missing some Tweet in this thread? You can try to
force a refresh
