The ongoing impasse over guidance from the UK’s human rights watchdog on access to single-sex spaces is distracting from other pressing issues, including the rise of the far right, insiders have told the Guardian.
Some members of staff at the Equality and Human Rights Commission (EHRC) are described as “desperate for regime change” ahead of the new chair, Mary-Ann Stephenson, taking up her post in December.
It comes as Labour backbenchers and equalities experts say that the appointment of up to four new board members to the EHRC should be an opportunity to broaden its approach and potentially appoint the watchdog’s first trans commissioner.
The EHRC is waiting for UK ministers to approve its official guidance on how public bodies, businesses and other service providers should respond to the supreme court’s April ruling that the legal definition of a woman is based on biological sex.
The new guidance is expected to closely reflect interim advice stating that transgender people should not be allowed to use toilets of the gender they live as, published by the EHRC immediately after that ruling.
It has been criticised by trans rights campaigners and some inside the commission as overly literal.
The current chair, Lady Kishwer Falkner, who will leave her post on 30 November, has expressed frustration at the time ministers are taking to approve the crucial new guidance.
But equalities minister Bridget Phillipson has insisted they are “taking the time to get this right” and that the final draft must be considered “thoroughly and carefully”, with other ministers denying any deliberate delays.
For Women Scotland, the campaign group that brought the original case resulting in the supreme court ruling, also warned that “all the wrangling over the code of practice is obscuring the critical point that the law stands irrespective of any guidance”.
The Guardian has previously reported on significant disquiet among rank and file commission staff at the manner in which the response to the supreme court ruling has been handled.
An EHRC source said: “It’s been stall, stall, stall but we’re at a risk of not being quorate or functional soon. I understand the tactic but not much use if we can’t do any work until they get recruitment sorted.”
Meanwhile, the government is advertising for up to four new commissioners to join Stephenson. The EHRC, which is required by statute to have between 10 and 15 commissioners, now has just eight, all but one of whom was appointed during the last Conservative government.
Deputy chair and Scotland commissioner Lesley Sawers and commissioner Joanne Cash will also finish their terms on 30 November. Akua Reindorf ends her term on 31 December.
It is understood that some Labour MPs as well as figures in the wider policy sector believe the current impasse is a distraction from other pressing issues, including the rise of the far right and its impact on the communities served by the EHRC.
They have been encouraging applications for the commissioner roles from those they feel take a more nuanced approach to trans inclusion.
One Labour backbencher said: “As these posts are coming up, it’s important to have that broad range of experience and expertise on the board, and within those discussions we’ve been saying please do encourage people from the trans community to consider it, or have you thought of applying?
“That broad range was essential from when EHRC was first set up but may have been narrowed with more political appointments under the Conservatives.
“When a group of us met some of the current board members and the current chair, we felt very strongly that an understanding of the impact of the supreme court ruling on the trans community wasn’t there.”
Another Labour backbencher said they hoped more people would apply: “We need commissioners with real world experience of the issues they grapple with.”
Stonewall said the arrival of the new chair and commissioners was an opportunity “to rebuild an EHRC that re-establishes fairness, balance, and respect at its core”.
CEO Simon Blake said: “We are living in a time of uncertainty and turbulence for many; this is an opportunity to review the strategic approach of our National Human Rights Institute so everyone – including trans people – can benefit from the rights and freedoms the EHRC is constituted to protect and defend.”
But Susan Smith of For Women Scotland called on Phillipson to “stop prevaricating” over approving the EHRC guidance.
“Trying to frustrate the release of the code or attempting to force the EHRC to misrepresent the legislation will not change the supreme court’s judgment,” she said.
“If MPs are unhappy they have the capacity to amend or repeal the Equality Act, but as the majority of voters supported the ruling, they may realise this would impact their prospects for re-election.
“The minister needs to stop prevaricating and put this to bed once and for all. During this period of 16 days of activism against gender-based violence, the government should remember that women are half the population and our human right to dignity, privacy, and safety matters.”
An EHRC spokesperson said: “Appointments to our board of commissioners are made by the minister for women and equalities through the standard public appointment process.
“Our commissioners come from all walks of life and bring with them a breadth of skills, expertise and experience.
“This diversity helps us make impartial and independent decisions, and ensures we continue to uphold the rights of all people in Britain, including trans people.”
