Good Law Project Limited & Ors, R (on the application of) v Commissioner for Equality and Human Rights

The power of the Equality and Human Rights Commission to give guidance about the effect or operation of legislation carries an obligation to state the law accurately, without misstatement or material omission. It does not require a comprehensive account of every possible legal consequence. Guidance may address a particular issue where it makes clear the relevant fact-sensitive statutory tests.

Under the Equality Act 2010, separate-sex services may be lawful where the statutory proportionality requirements are met. The Workplace (Health, Safety and Welfare) Regulations 1992 require suitable and sufficient workplace facilities, but do not prevent additional provision. Compliance with those Regulations does not displace the separate prohibition of gender reassignment discrimination. The challenge to the guidance therefore failed.

The claimants challenged interim guidance issued by the Commissioner for Equality and Human Rights after the Supreme Court’s decision in For Women Scotland Limited v Scottish Ministers. The guidance addressed the effect of that decision on single-sex toilets, changing facilities and washing facilities in workplaces and services open to the public.

The claimants alleged that the guidance misstated the Equality Act 2010 and the Workplace (Health, Safety and Welfare) Regulations 1992, failed to comply with the Commission’s statutory purposes, and was incompatible with Convention rights. The Commission argued that the challenge was academic after the guidance was removed and that the first claimant lacked standing. The central issues were whether the guidance was legally inaccurate and whether its publication breached the Commission’s statutory duties.

1. Preliminary issues. The challenge was not academic. Although the guidance had been removed, evidence showed that employers and service providers had relied on it and that resulting arrangements remained in force. The Good Law Project lacked sufficient interest under section 31(3) of the Senior Courts Act 1981, since it was not directly affected and directly affected individual claimants were already before the court.
2. Accuracy obligation. Reading section 13(1)(d) of the Equality Act 2006 with sections 3, 8 and 9, the Commission had to provide an accurate statement of the law, without misstatement or material omission. This obligation was equivalent to principle (ii) identified in R(A) v Secretary of State for the Home Department [2021] 1 WLR 3931.
3. Workplace facilities. Regulations 20 and 21 of the Workplace (Health, Safety and Welfare) Regulations 1992 require suitable and sufficient sanitary conveniences and washing facilities, ordinarily in separate rooms for men and women. Regulation 24 similarly addresses separate changing facilities where necessary for propriety. The provisions concern use as well as the bare physical existence of facilities. They do not, however, prevent additional facilities or displace the prohibition of gender reassignment discrimination under Part 5 of the Equality Act 2010.
4. Public services and proportionality. Sections 29 and Schedule 3 paragraphs 26 to 28 of the Equality Act 2010 permit separate-sex or single-sex services only where the relevant conditions are met and the provision is a proportionate means of achieving a legitimate aim. The guidance sufficiently conveyed the fact-sensitive nature of that assessment. It did not state that transsexual persons must invariably use facilities corresponding to biological sex.
5. Discrimination and additional provision. Whether permitting trans women to use female-labelled facilities while excluding other biological men amounts to less favourable treatment is a qualitative and fact-sensitive question. Additional mixed-sex or single-user facilities may assist proportionality, but the legal consequences depend on the circumstances.
6. Statutory purposes and Convention rights. Sections 3, 8 and 9 of the Equality Act 2006 impose broadly framed purposes, leaving the Commission latitude in deciding how to pursue them. They do not generally impose procedural requirements or require every aspect of a relevant judgment to be summarised. Any interference with Article 8 rights was either not necessary under the statutory schemes or capable of justification on the facts.
7. Permission to seek judicial review was granted to the three individual claimants and refused to the Good Law Project. All three grounds failed. The application for judicial review was dismissed.

First-instance judicial review decision. No earlier decision in the same proceedings was stated.