UK: Keep calm and respect diversity, says UN expert

Additional quotes from the document:

In December 2022, the Scottish Parliament passed the Gender Recognition Reform Bill with overwhelming support across political parties. In doing so, Scotland followed international good practice recommended by a vast majority of United Nations human rights bodies, including the High Commissioner for Human Rights. However, the UK Government in January 2023 made an order under Section 35 of the Scotland Act 1998 to prevent the Bill from being submitted for Royal Assent and being enacted into law. The Scottish Government are contesting that order in court. As noted above, the Independent Expert previously testified twice before the Scottish Parliament in June and December 2022 in support of the Bill and, although he takes no stance in relation to the legal dispute between the UK and Scottish Governments, which relates to matters that are primarily constitutional in nature, he laments that this action has de facto deprived trans persons in Scotland of the benefits of a simplified process by which to obtain Gender Recognition Certificates. The Independent Expert heard direct testimony from over a dozen trans and gender diverse persons who were waiting for the simplified process, some of them because - out of principle and a perception of their own dignity - they reject the pathologization of their lives.

The Independent Expert was particularly alarmed by a 3 April 2023 letter from the Equalities and Human Rights Commission (EHRC) to the Minister for Equalities, by which it advised that defining the term “sex” as “biological sex” under the Equality Act would “bring greater legal clarity” to the implementation of the Act. In contrast, the Scotland Committee of the EHRC had itself on 28 February 2023 expressed concerns it did “not consider sufficient evidence has been presented to justify amending the definition of legal sex in the EqA [Equality Act] 2010 to biological sex at this time”, noting that “the Board should consider the risk to our perceived political independence if we are perceived to be aligning with Government in the absence of robust evidence. This is a potential existential risk that such a perception could risk the Commission’s existence going forward.” Additionally, the committee indicated there had been no clear demonstration of a legal need or legitimate aim, even though “changing the definition of sex could diminish trans people’s rights; for example, legal colleagues advised that, if the proposed change were implemented, obtaining a Gender Recognition Certificate would no longer change a person’s sex in discrimination law. The Committee considered the Commission should be advancing the rights of minorities and not potentially diminishing rights for some groups.”

In a meeting with the EHRC on 4 May 2023, the Independent Expert was shocked to hear that the EHRC offered that advice without itself having any definition of ‘biological sex’; UK law provides no such definition either. The EHRC however specifically conceded that, in the context of the letter, the intended meaning of the term “biological sex” is to define women as “women who are not trans.” As one Commissioner elaborated: “under the Equality Act, […] a trans woman who does have a GRC is a woman under the current case law. […] if the government decides to make the amendment, they don’t need to define biological sex, they can do it by way of exclusion of the GRA.” It then follows that the objective of the EHRC was to offer the Government a formula through which it could carry out discriminatory distinctions currently unlawful under UK law, and that will remain so under international human rights law. The Independent Expert is of the opinion that this action of the EHRC is wholly unbecoming of an institution created to “stand up for those in need of protection and hold governments to account for their human rights obligations” (mission statement, EHRC webpage; emphasis added)

“I have never seen so much unadulterated hatred as currently directed toward the trans community,” said an elected officer in Belfast; an MP said in London: “there is more fear in the streets than there used to be.” A Welsh civil society representative remarked the negative environment created by the frequent posting of messages on Twitter by a prominent politician that appeared to be opposed to LGBT persons’ equal enjoyment of human rights, alongside similar political messages critical of human rights protections for migrants.

Democracies benefit from healthy debate; that includes the protection of free speech and accountability for hate speech. The Rabat Plan of Action articulates a test for defining restrictions on freedom of expression, incitement to hatred, and for the application of article 20 of the ICCPR. It outlines a six-part threshold test: (1) the social and political context, (2) status of the speaker, (3) intent to incite the audience against a target group, (4) content and form of the speech, (5) extent of its dissemination, and (6) likelihood of harm, including imminence. During the visit, the Independent Expert received information about thousands of articles spreading misinformation (criterion 5) and witnessed first-hand the casual appropriation by top-level political actors (criterion 2) of rhetoric deeply associated with the questioning of legal protections on the basis of gender reassignment. A key example: “what is a woman?” a question that, in the social and political context (criterion 1), is commonly asked by “gender-critical” actors to challenge the legal recognition of trans women under UK law.