{"id":519918,"date":"2025-10-22T15:24:14","date_gmt":"2025-10-22T15:24:14","guid":{"rendered":"https:\/\/www.europesays.com\/uk\/519918\/"},"modified":"2025-10-22T15:24:14","modified_gmt":"2025-10-22T15:24:14","slug":"council-of-europe-commissioner-told-to-respect-uks-rule-of-law","status":"publish","type":"post","link":"https:\/\/www.europesays.com\/uk\/519918\/","title":{"rendered":"Council of Europe Commissioner told to respect UK\u2019s rule of law"},"content":{"rendered":"

The Home Secretary has strongly criticised<\/a> Dr Michael O\u2019Flaherty, the new Council of Europe Commissioner for Human Rights, for seeking to undermine confidence in the Equality Act and the Supreme Court\u2019s interpretation of it.\u00a0<\/p>\n

O\u2019Flaherty led the development of the Yogyakarta principles<\/a> in 2006. This influential document, developed by a group of self-appointed experts, built on the UK\u2019s 2004 Gender Recognition Act and demanded that other countries legally recognise a person\u2019s self-defined gender identity without any medical treatment.\u00a0It is not surprising that O\u2019Flaherty disagrees with the Supreme Court, since the clear implication of its interpretation of the Gender Recognition Act is that the developers of the Yogyakarta principles over-interpreted it and neglected to consider the importance of a coherent system of protection against sex discrimination.\u00a0<\/p>\n

O\u2019Flaherty began his six-year term as Human Rights Commissioner in April last year. This role means that he may submit written comments and take part in hearings in all cases before the Grand Chamber of the European Court of Human Rights.<\/p>\n

On 3rd October he wrote to<\/a> the Home Secretary and to the Joint Committee on Human Rights and the Women and Equalities Committee saying that the Supreme Court did not engage with human rights issues in its consideration of the interaction between the Gender Recognition Act and Equality Act in For Women Scotland.<\/p>\n

Shabana Mahmood, the Home Secretary, has told him: <\/p>\n

\n

\u201cI consider it unacceptable to question the validity of the Supreme Court in making this decision.\u201d\u00a0<\/p>\n<\/blockquote>\n

Sex Matters sets out the human-rights arguments<\/p>\n

Sex Matters responded to O\u2019Flaherty\u2019s\u00a0letter by writing to the two committees setting out why his approach is fundamentally misconceived<\/a>.\u00a0<\/p>\n

In his letter, Dr O\u2019Flaherty does not engage with the meaning of \u201csex\u201d or use the terms \u201cgender reassignment\u201d or \u201cprotected characteristic\u201d. These terms are at the heart of the Equality Act, and the Supreme Court\u2019s judgment. As Mahmood points out, his claim that trans people\u2019s human rights are not protected in UK law \u201cdoes not accurately reflect the United Kingdom\u2019s legal framework or operational realities\u201d.<\/p>\n

The Supreme Court\u2019s judgment makes absolutely clear that working through tensions between the human rights of different groups depends on correctly defining and identifying what is meant by \u201cman\u201d and \u201cwoman\u201d. It concluded that only when those terms have their ordinary meaning can the law be coherent and workable, and protect everyone against sex discrimination \u2013 and also protect people who are, or are perceived to be, trans from discrimination.\u00a0<\/p>\n

The judgment quoted the Employment Appeal Tribunal judgment in Forstater, which recognised that the Gender Recognition Act does not compel anyone to believe that a person has actually changed sex. It made clear that the Equality Act protects people from discrimination based on the sex that they are and also if they face discrimination or harassment in relation to being associated with or perceived as the opposite sex, as the recent case of Sophie Cole v Royal Mail<\/a> demonstrates.<\/p>\n

O\u2019Flaherty raises concerns about legal uncertainty or dissonance \u201cbetween the lived experiences of trans people and their treatment in law\u201d. In fact, the Supreme Court gave careful consideration to \u201clived experience\u201d, and concluded that women\u2019s lived experience of being female is not something that is shared with men (including men who identify as transgender). At the heart of the judgment is the recognition that \u201cshared biology leading to shared disadvantage and discrimination [is] faced by them as a distinct group\u201d.<\/p>\n

Flaherty also wrote that he is worried about \u201cthe exclusion of trans people from many public spaces\u201d. The Equality Act protects people who are or are perceived as being transgender from discrimination on this basis in situations such as employment and services. But this does not give these individuals the right to access single-sex spaces provided for members of the opposite sex. The Supreme Court concluded that it would be impossible to justify or operate such spaces without clear rules about sex. Women using a toilet, changing room or shower are engaging in a \u201cprivate act\u201d under the Sexual Offences Act 2003, and their right to privacy<\/a> is infringed if they are exposed (or put at risk of exposure to) unexpected members of the opposite sex. We have asked the committees to be robust in recognising that single-sex and separate-sex services protect everyone.\u00a0<\/p>\n

Professor Michael Foran<\/a> and Athena Forum<\/a> also wrote in response to the commissioner\u2019s letter.\u00a0<\/p>\n","protected":false},"excerpt":{"rendered":"The Home Secretary has strongly criticised Dr Michael O\u2019Flaherty, the new Council of Europe Commissioner for Human Rights,…\n","protected":false},"author":2,"featured_media":519919,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5174],"tags":[169217,5100,2000,299,5187],"class_list":{"0":"post-519918","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-eu","8":"tag-echr-european-court-of-human-rights","9":"tag-equality-act","10":"tag-eu","11":"tag-europe","12":"tag-european"},"share_on_mastodon":{"url":"https:\/\/pubeurope.com\/@uk\/115418514475177492","error":""},"_links":{"self":[{"href":"https:\/\/www.europesays.com\/uk\/wp-json\/wp\/v2\/posts\/519918","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.europesays.com\/uk\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.europesays.com\/uk\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/uk\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/uk\/wp-json\/wp\/v2\/comments?post=519918"}],"version-history":[{"count":0,"href":"https:\/\/www.europesays.com\/uk\/wp-json\/wp\/v2\/posts\/519918\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/uk\/wp-json\/wp\/v2\/media\/519919"}],"wp:attachment":[{"href":"https:\/\/www.europesays.com\/uk\/wp-json\/wp\/v2\/media?parent=519918"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.europesays.com\/uk\/wp-json\/wp\/v2\/categories?post=519918"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.europesays.com\/uk\/wp-json\/wp\/v2\/tags?post=519918"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}