High Court dismisses judicial review, finding interim single-sex guidance within regulator’s powers
The High Court has dismissed a judicial review brought by the Good Law Project challenging interim guidance issued by the Equality and Human Rights Commission (EHRC) on the provision of single-sex services, holding that the regulator acted lawfully in publishing the update and rejecting all substantive grounds of challenge.
The claim arose following the Supreme Court’s decision in For Women Scotland Ltd v The Scottish Ministers, which addressed aspects of the legal meaning of “sex” under the Equality Act 2010. In response to that judgment, the EHRC issued interim guidance intended to assist service providers, employers and public bodies in understanding the implications of the ruling pending the publication of fuller guidance.
The claimants argued that the EHRC had mischaracterised the effect of the Supreme Court’s decision and had, in substance, altered the operation of equality protections without consultation, thereby acting outside its statutory remit. Mr Justice Swift rejected those arguments.
The judge held that the interim update, which addressed the provision of single-sex toilets and changing facilities, did no more than consider the application of existing statutory provisions, including the Equality Act 2010 and the Workplace (Health, Safety and Welfare) Regulations 1992. The guidance was directed at the specific issue affected by the Supreme Court’s judgment, and the EHRC did not act unlawfully by limiting the interim update to that area rather than addressing wider questions relating to the protected characteristic of gender reassignment.
In dismissing the claim, the court emphasised that judicial review is concerned with legality rather than disagreement over interpretation. The judge observed that a requirement to state the law accurately does not impose an obligation on a public body to produce a comprehensive account addressing every possible issue arising under the legislation. The interim guidance was therefore lawful notwithstanding criticism that it did not address broader matters.
The court also rejected allegations of irrationality, procedural unfairness and jurisdictional overreach, finding that the EHRC had acted within its statutory functions in explaining its understanding of the legal position following a binding Supreme Court decision.
In a statement following the ruling, EHRC chair Dr Mary-Ann Stephenson said the judgment confirmed that the interim update was lawful and that the Commission had not acted in breach of its statutory duties. She said the guidance had been issued in response to significant demand following the Supreme Court’s ruling and concerns that misunderstanding of the judgment could lead organisations to adopt policies inconsistent with the Equality Act 2010. She added that the Commission would consider any further proceedings should permission to appeal be sought.
The Good Law Project has indicated that it intends to appeal the decision.