In an article published by PinkNews last week, our Legal Officer Cathy Jaquiss explains the potential impacts of April’s Supreme Court ruling and its disproportionate harm to trans people seeking safety in the UK. Read the full article on PinkNews, or find a summary below.
The recent Supreme Court ruling was significant but it is hugely important to continue to emphasise that it only dealt with how the words “sex”, “man” and “woman” are defined for the purposes of the 2010 Equality Act. The ruling does not change trans people’s entitlement to refugee status under the Refugee Convention and other associated human rights legislation.
Transgender people are still entitled to asylum if they meet the criteria: which, in basic terms, is that they face a risk of persecution due to being trans, that the state in their country of nationality would not protect them, and that they cannot relocate to that country to avoid risk.
Trans rights, including the rights of trans refugees and migrants, are still protected under international human rights law. The Home Office, as a public body, is required to act in accordance with the European Convention on Human Rights.
However, the ruling, and especially the associated draft guidance issued by the EHRC, is already starting to have an impact on the every-day lives of trans people in the UK. Rather than giving clarity on the issue of how to include trans people in services, the guidance seems more focused on how to exclude transgender people from those services.
Trans people seeking asylum and migrants face particular and numerous intersecting barriers which put them at risk of harm in particular ways. This can include a lack of appropriate and safe accommodation, a lack of access to healthcare and mental-health support, problems finding legal support, racism and misogyny. The hostile climate created by the judgement and EHRC guidance only makes these barriers more difficult to overcome.
Although interpretations of the Supreme Court judgement do differ among lawyers, many legal interpretations affirm that the law still allows for trans-inclusive service provision. Instead of jumping to exclude on the basis of the judgement, or the draft guidance, service providers should take legal advice and consider carefully their objectives and justifications for trans-inclusive service.
The EHRC is consulting on its guidance until 30 June, so now is your chance to speak up. Anyone can respond, and TransActual, Mermaids and Scottish Trans have created a resource to help you understand which questions to answer and what you might want to say.