sogiescwatcher

[sogiescwatcher]

Today the United Nations published the latest report by the sub-committee on accreditation of the Global Alliance of National Human Rights Institutions.

In which the SCA announces a special review of Great Britain’s Equality and Human Rights Commission (EHRC).

The report

The SCA had received 9 submissions from civil society organisations earlier this year, after the EHRC suggested that the UK Government could amend anti-discrimination law to make it easier to discriminate against transgender people. The SCA had, meanwhile, become aware that the EHRC had significantly changed its stance on transgender issues - and that this had been criticised by some as inconsistent with its previous stance and with international standards. Meanwhile, there were also news reports that the EHRC had a toxic internal culture, with allegations of bullying and senior staff leaving.

Then the UN Independent Expert on Sexual Orientation and Gender Identity visited the UK. He said the EHRC’s advice on the definition of ‘sex’ under the Equality Act, 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’”.

The EHRC was given an opportunity to respond to these allegations. It denies wrongdoing. The SCA nevertheless has decided to initiate a special review.

“The SCA is of the view that third party submissions and publicly available information raise serious concerns about the continued compliance of the EHRC with the Paris Principles, including its ability to conduct its mandate independently, to take positions in line with international standards, and its cooperation with civil society.

“In view of the information before it, the SCA decides to initiate a Special Review in accordance with Article 16.2 of the GANHRI Statute in order to determine the EHRC’s ongoing compliance with the Paris Principles.”

What is GANHRI? What is accreditation?

What does this mean? So the EHRC is Great Britain’s National Human Rights Institution (NHRI).

The United Nations encouraged states to set up NHRIs to promote and protect human rights. In 1993 the UN General Assembly approved standards for NHRIs, the Paris Principles.

The Paris Principles require NHRIs to be independent in law, membership, operations, policy and control of resources. They also require that NHRIs have a broad mandate; pluralism in membership; broad functions; adequate powers; adequate resources; cooperative methods; and engage with international bodies.

In the same year, the Global Alliance of National Human Rights Institutions (GANHRI) was established. One of its roles is to accredit NHRIs based on compliance with the Paris Principles.

NHRIs that broadly comply with the Paris Principles are given ‘A status’. This gives them the independent right to take part in UN Human Rights Council meetings, and the right to vote and hold leadership positions within GANHRI.

NHRIs that only partially comply are given ‘B status’.

The EHRC currently holds ‘A status’, and was last accredited in October 2022. In the normal way of things they wouldn’t be reaccredited for another five years. Except here the EHRC faces a special review after just one year.

The special review process

GANHRI has a useful practical guide setting out the various steps in the process. The process can take up to 18 months. Following the review GANHRI can recommend A-status be maintained, that it be downgraded to B status, or that the review be deferred (for no more than 18 months) so the NHRI can provide additional information. Any downgrade takes effect one year later.

My personal view

The EHRC is in a difficult spot. The GANHRI report says the SCA has concerns about EHRC’s independence, its willingness to take position in line with international standards, and cooperation with civil society.

Considering each in turn…

Independence

The basic problem here is that the current Conservative government have all but confirmed that the new EHRC commissioners are there to pursue its policies. In December 2020, Liz Truss gave a speech in which she railed against the failed ideas of the left, blamed Michel Foucault for children learning about racism in schools, and went on to boast about how she’d appointed the EHRC commissioners to “challenge dangerous groupthink”.

“That is why I am appointing a new chair and a wide variety of commissioners to the Equality and Human Rights Commission to drive this agenda forward. […]”

“Under this new leadership, the EHRC will focus on enforcing fair treatment for all, rather than freelance campaigning.”

Since then we’ve seen some baffling interventions by the EHRC, which seem calculated to sabotage progressive reforms or provide political cover for regression. The EHRC suddenly decided that a conversion therapy ban - one of the key priorities for LGBTQI+ human rights defenders - needed to be watered down. Having consistently supported gender recognition reforms, it radically toned down this support. Then, earlier this year, it suggested that the UK Government change the definition of “sex” in equality law to mean “biological sex”. These stances are completely at odds with those of international and regional human rights bodies - but do fit nicely with the Government’s anti-woke agenda.

International standards

The EHRC’s stance on transgender people also brings it into conflict with international standards.

For nearly a decade now, the UN Human Rights Office has endorsed gender recognition based on self-identification, a stance endorsed by other international and regional human rights mechanisms. States are expected to give access to gender recognition based on a simple administrative process without abusive requirements such as forced medical diagnosis. It also supports a full ban on so called conversion “therapy”.

The UN Free and Equal Campaign’s standards of conduct for business likewise expects businesses to prevent ill treatment of trans staff, customers or stakeholders. This includes recognising gender identity based on self-identification, and respecting the names and pronouns used by the person concerned.

Self-identification and a conversion therapy ban also formed the basis of the recent campaigns by the former UN Independent Expert on Sexual Orientation and Gender Identity.

And this is just a flavour. Human rights instruments tend to be interrelated and overlapping. Support for trans rights is found not just at the UN Human Rights Office but among international human rights bodies generally.

Coming at it from the other direction

The direction of travel under Baroness Falkner has been in an explicitly conservative direction. Animosity towards LGBT and in particular transgender rights has been one of the unifying causes of the global ultranationalist and religious conservative movements. The insistence that law should be based on immutable biology is found in the religious conservative response to the feminist, gay rights and transgender rights movements. See, for instance, the publications on transgender issues by the Family Research Council.

The current EHRC board has prominent supporters of the “gender critical movement”, a movement that has been condemned by regional human rights mechanisms.

“The Assembly condemns the highly prejudicial anti-gender, gender-critical and anti-trans narratives which reduce the struggle for the equality of LGBTI people to what these movements deliberately mis-characterise as “gender ideology” or “LGBTI ideology”. Such narratives deny the very existence of LGBTI people, dehumanise them and often falsely portray their rights as being in conflict with women’s and children’s rights, or societal and family values in general. All of these are deeply damaging to LGBTI people, while also harming women’s and children’s rights and social cohesion.” - Parliamentary Assembly of the Council of Europe, Resolution 2417 (2022)

The EHRC is alleged to have worked closely with members of anti-gender, gender-critical hate groups. And this at a time when the anti-gender movement is gaining ground across the globe, with direct links to religious conservative funders in the US, and Russian oligarchs.

Relations with civil society

Finally, the EHRC has irreparably burnt its bridges with civil society. Its alignment with the Conservative government’s culture war politics means that there’s now little possibility of engagement under the current leadership.

The basic problem here is that the EHRC is pitching itself as a neutral arbiter, rather than one that will promote and protect human rights in all circumstances without exception. The EHRC sees its failure to stand up for certain human rights as a sign that it is balancing the competing demands of different groups in society. It complains that the previous policy towards transgender people was pushed by the full time staff at the EHRC, not by the board level commissioners.

One is left with the feeling that the EHRC sees independence not in terms of upholding all human rights even when it annoys the government, but as a top down regulator that decides for itself whether and which human rights deserve protection.

Which is perhaps exactly what Liz Truss meant when she condemned the EHRC’s previous “freelance campaigning”.

[sogiescwatcher]

Great Britain’s Equality and Human Rights Commission’s Scotland Committee has published its latest minutes - and they’re damning.

——

Implications of Equality Act 2010 (EqA 2010) reform

3.1 The Scotland Committee members discussed and considered the proposed options for how to respond to the letter from the Minister for Women and Equalities to the EHRC Chairwoman of 21 February 2023. In the letter, the Minister asks the Commission for advice on “the benefits or otherwise of an amendment to the 2010 Act on the current definition of 'sex', along with any connected or consequential enactments, bearing in mind the advantages and disadvantages that such a change might entail for affected groups.”

3.2 Members noted the different views and opinions that exist both within the Committee and across communities and stakeholder groups regarding the definition of sex in the EqA 2010 and the complexity of this issue.

3.3 The Scotland Committee agreed that their preferred option would be to maintain the status quo as they do not consider sufficient evidence has been presented to justify amending the definition of legal sex in the EqA 2010 to biological sex at this time. They advised gathering additional analysis, evidence and stakeholder views to better understand the implications and wider ramifications of such a change, and to consider alternative options.

3.4 In responding to the Secretary of State’s letter, should the status quo not be an option, the Scotland Committee advised that we should acknowledge the complex legislative and balancing of rights issues that exist, outline the issues that the Commission is aware of, such as the potential diminution of trans people’s rights, and state that consideration of a change to the EqA 2010 is a legal and policy matter and therefore should be undertaken by Government. They did not consider this was our role as a regulator.

3.5 The following advice was noted:

a) there is a reputational risk in recommending amendments to the definition of sex in the EqA 2010 as it undermines the Commission’s long held position, which has been that transitioning is a response to the medical diagnosis of gender dysphoria and trans rights come with that dysphoria;

b) the Commission’s role is to regulate the Act and not to provide legal advice to the Government;

c) 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;

d) the legal analysis (as outlined in the Committee meeting paper) has not demonstrated that amending the definition of sex in the EqA 2010 would resolve where the law as drafted is not currently working properly. Committee members noted that only excerpts of the legal advice had been provided in the paper and sight of the full legal advice would have been helpful;

e) there is a concern that 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;

f) the Committee considered it would be helpful to have a comparative analysis of what is being sacrificed and what is being gained, as otherwise any action could be considered a regressive step without justification;

g) further analysis was suggested on the impact for people with protected characteristics under our fostering good relations duty; the impact on trans people’s access to single sex services and spaces; the impact on people’s lives in the UK and other countries (as different laws in different countries take different definitions);

h) the Committee also noted the likely significant resource implications for the Commission with moving forward, and this should be highlighted to Government to consider additional funding. Detailed consideration of the impact of this work on our current strategic plan is needed;

i) there is no scientific consensus on what biological sex means, with particular definitional issues arising for intersex people, which makes this intervention problematic for the Commission, while noting that many people hold the view that sex is binary;

j) there is a wider point that, when we start to look to define sex in the EqA 2010 as biological sex, and the paper lacks suitable scientific rigour on this point, it could lead to a lack of legal clarity if any changes to the Act are made. Such a change would lead to diminution of trans people’s rights, which we have a duty to uphold, without evidence of any specific benefit for other minorities. Such a move could lead to legal and other challenges to the Commission;

k) the external environment in Scotland in this area is already quite polarised and this work could exacerbate existing political tensions between Westminister and Holyrood Parliaments; and

l) the definition of sex in the EqA 2010 extends to other provisions, many of which are devolved in Scotland, such as employment, education, housing, and health provision, and this goes further into devolved areas. There are also implications for provisions in the EqA 2010 where gender is referred to, such as Gender Pay Gap and the Public Sector Equality Duty Scottish specific duties.

3.6 The Scotland Committee members thanked the executive team for the well-written paper on such a complex matter, and for their contributions during the meeting to help clarify the issues.

3.7 The Scotland Commissioner thanked members for attending the meeting at short notice and for their inputs and honesty. One member advised that it would be good to improve on giving members more notice, noting that this is a huge issue with lots of detail.

3.8 The Scotland Commissioner advised members that the key points from the discussion will be written up and shared with them for any further reflections. The Scotland Commissioner will speak to the summary at the Board call on 3 March.

Action: Governance team to write up key points from the Scotland Committee call by 1 March and share with members for comments by 2 March.

[sogiescwatcher]

Wednesday: the UN publishes its conclusions on the UK as part of the UPR.

[sogiescwatcher]

GANHRI has published its accreditation report on Great Britain’s Equality and Human Rights Commission.

Includes recommendations relating to the EHRC’s approach to the rights of LGBTI persons and their relationships with civil society.

[sogiescwatcher]

Moving swiftly on, we come to the summary of stakeholders submissions.

The UN received 71 submissions from UK civil society organisations.

Plus submissions from Great Britain’s, Scotland’s and Northern Ireland’s national human rights institutions.

On LGBT+ issues specifically:

The SHRC was concerned by hate crimes and public harassment against LGBT+ people, among other groups, in Scotland.

SHRC was concerned about access to healthcare for LGBT+ people

SHRC reported fear of homophobia, biphobia and transphobia in Scotland.

NIHRC called on the UK to ban all forms of conversion therapy.

Then we come to stakeholder submissions. We see that both Disabled People against Cuts and the Islamic Human Rights Commission express concerns about political appointments to Great Britain’s NHRI, the EHRC. But on LGBT+ issues specifically, there were a number of submissions from anti-trans groups:

For Women Scotland, Fair Play For Women, and Transgender Trend raised concerns about trans women in prisons.

Fair Play for Women thinks the pay gap and discrimination is aggravated by the lack of data disaggregated by biological sex

Fair Play for Women and a joint submission by Women's Rights Network and Liberal Voice for Women expressed concern that data collection on sex was undermined by self-identified gender.

For Women Scotland claims that gender recognition reform affects women from minority ethnic and religious groups, said that housing prisoners based on self-defined gender was having an impact on women in prisons,

Transgender Trend is unhappy with the definition of “transphobic”

LGB Alliance made submissions about the impact of “gender identity theory” on LGB people.

Meanwhile

Stonewall and Mermaids prepared a joint submission raising concerns about LGBTQI rights in the UK. They call for a full ban of conversion therapy and note the UK’s failure to enact its 2018 action plan.

Concerns about the rise in transphobic hate crime and about domestic abuse involving trans women.

Liberation for Full Human Rights and Disabled People against Cuts also comment on LGBTQI rights in their submissions.

Amnesty International, Stonewall and Mermaids call for reforms to the gender recognition act.

A joint submission including Stonewall Scotland together with a number of other human rights groups noted the impact of conversion therapy in Scotland

Next I’ll take a look at the individual submissions to see if there’s anything exciting in there.

#lgbtq #transgender #united nations

[sogiescwatcher]

Continuing onwards…

We reach the compilation of information by the UN Office of the High Commissioner for Human Rights…

So. The UN Human Rights Chief isn’t keen on Britain’s plans to replace the human rights act with a “Bill of Rights”. And UNICEF reckons that the new Bill should include extra child rights.

The Committee on Torture would rather like the UK to incorporate the treaty against torture into UK law. Ditto the Committees on Disabilities and the Rights of the Child with respect to their treaties.

Moving forwards, to specific human rights issues…

The UN Committee on Torture is concerned by reports it’s received about increasing anti-transgender crimes in recent years.

The Human Rights Committee was concerned about suicide and self harm in prison among LGBT communities.

And the Committee on the Rights of the Child was concerned about discrimination, with regard to health, education, alternative care and child justice, against lesbian, gay, bisexual, transgender and intersex children.

#lgbtq #united nations #transgender

[sogiescwatcher]

Let’s take a quick look at the UN documentation for the next UK submission to the Universal Periodic Review.

They’ve published three documents: a report submitted by the UK, a compilation of information by the UN Human Rights Office, and a summary of the various submissions by civil society organisations.

Alongside this they’ve published the original submissions.

Let’s take a look…

1. The National Report

The UK says it is committed to respecting human rights and upholding its international human rights commitments. But…

… the UK doesn’t plan to ratify the United Nations Convention for the Protection of All Persons from Enforced Disappearance (UNCPPED) or the United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (UNCRMW). Because UK domestic law already protects these groups, apparently.

Moving on, the UK has ratified the Istanbul Convention. It highlights that Scotland plans to incorporate the UN Convention on the Rights of the Child into domestic law.

Paragraph 10 is interesting as it includes commentary on the proposed Bill of Rights, which will, ahem, “continue to give further effect into UK law the rights contained in the European Convention on Human Rights (ECHR), with a remedy for a breach of a Convention right available in UK courts.”

It also suggests there’ll be a Bill of Rights for Northern Ireland. But “Consensus, including between the Northern Ireland parties, is needed before any agreement can be reached on what such a Bill of Rights should include.”

The report next goes on to look at specific issues and characteristics. On non-discrimination against LGBT people in particular, the UK highlights the introduction of equal marriage. It also highlights gender recognition reform in Scotland. And Scotland’s plan to ban conversion therapy.

Before we leave this report, I note that the UK also says it supports a recommendation from the previous UPR, by Spain, to “dedicate more resources to fight against negative stereotypes in the media, against the most affected minority groups (lesbian, gay, bisexual, transgender and intersex persons, Gypsies, Muslims, refugees and persons granted asylum).”

In my next post, I’ll look at the compilation of UN Information…

#lgbtq #transgender #sogiesc #united nations

[sogiescwatcher]

A quick look at things that I’m currently keeping an eye on.

1. Gender recognition reform

Scotland is debating reforms to bring its gender recognition process in line with international human rights norms. The next phase, stage 2, is on 15 November. A number of MSPs have submitted amendments, including attacks on the ability of children over 16 to have their gender recognised, and to make it harder for people from outside Scotland to have their legal gender recognition.

2. The Global Alliance of National Human Rights Institutions (GANHRI) to publish a report on the Great Britain’s Equality and Human Rights Commission

GANHRI is the body charged by the UN with accrediting national human rights institutions, and at its most recent meeting it looked at Great Britain’s EHRC.

The report will be interesting. The EHRC has apparently retained A status, but concerns were raised by civil society organisations about its independence after the then Equalities Minister Liz Truss announced that she’d picked the membership of the commission to drive her agenda forward, followed by an about turn on the human rights of trans people. Current commissioners include Akua Reindorf, who published legal advice encouraging a university to discriminate against trans people, and Alasdair Henderson, who represented Keira Bell in her attempt to restrict trans kids access to healthcare.

3. The UK at the UN’s UPR

On Thursday 10 November, 9:00 - 12:30, the UK faces the next session of the United Nations’s Universal Periodic Review - a periodic review of the human rights records of all 193 UN Member States.

In anticipation of this, the UN has published documentation - including the national report by the UK, a report by the UN, and a list of questions that will be asked as part of the review.

Conclusion.

As and when things develop, I may blog about them here.

#lgbtq #united nations #scottish parliament #gender recognition act #transgender