On 6 June 2025, Mr Justice Swift refused permission for Liberty to challenge the consultation process being run by the Equality and Human Rights Commission (EHRC) to its updated Code of Practice, in R (National Council for Civil Liberties) v EHRC [2025] EWHC 1504 (Admin). The claim had been issued by Liberty in the context of the EHRC seeking to update its Code in light of the Supreme Court’s decision in For Women Scotland Ltd v Scottish Ministers [2025] UKSC 16; [2025] 2 WLR 879 (FWS). There, the Court held that “The meaning of the terms ‘sex’, ‘man’ and ‘woman’ in the [Equality Act 2010] is biological and not certificated sex” (para.265), such that a trans person with a gender recognition certificate (GRC) should be treated as being of their ‘birth sex’ for the purposes of the protected characteristic of sex under the Equality Act 2010 (EqA 2010). While FWS did not technically change the law, it has changed many people’s understanding of what the EqA 2010 required. This included the EHRC, whose pre-existing Code of Practice stated that people with a GRC generally should be treated according to their acquired gender (rather than their birth sex).
On 26 June 2025, the Court of Appeal dismissed Liberty’s expedited application for permission to appeal, having heard submissions on the same day. James Goudie KC and Stephen Kosmin successfully appeared for the EHRC at that hearing. In a judgment with which Nicola Davies LJ and Lewis LJ agreed, Dingemans LJ held: (i) Swift J had been entitled, and was indeed right, to conclude that the EHRC had complied with its public sector equality duty on the basis that it was an “inevitable inference” that it must have been discharging that duty when extending the consultation period from two weeks to six weeks; and (ii) the third Gunning requirement (i.e. “adequate time must be given” for a consultee to give “intelligent consideration and an intelligent response”) had been complied with. Dingemans LJ contrasted the issue of “what is desirable” (as to which he recognised arguments both in favour of and against a further extension of the consultation period) with whether the six week period of consultation was “so unfair as to be unlawful”, concluding that there was no arguable basis for finding that the latter threshold had been met. The Court of Appeal also rejected Liberty’s submission that there was another compelling reason to hear the appeal.
A copy of the Court of Appeal’s judgment will be provided in this news item in due course.
In these proceedings, James Goudie KC, Tom Cross KC, Stephen Kosmin and Ben Mitchell, instructed by Ian Tucker and Trilby James of Burges Salmon LLP (Bristol), have acted for the EHRC.
