By Jo Seery, Professional Support Lawyer
The High Court has dismissed a judicial review challenge to the Equality and Human Rights Commission’s (EHRC) interim update on the practical implications of the Supreme Court’s decision in For Women Scotland Ltd v Scottish Ministers which was handed down on 16 April 2025.
In R (Good Law Project Ltd) v Equality and Human Rights Commission, Swift J rejected claims by the Good Law Project and three individuals that the interim update was wrong in law and that the EHRC breached its statutory duties under the Equality Act 2006. The court also rejected an alternative argument that, if correct, the law described in the interim update was incompatible with the right to respect for private and family life under Article 8 of the European Convention on Human Rights.
The EHRC published the interim update on 25 April 2025, following the Supreme Court Judgment in For Women Scotland Limited v Scottish Ministers [2025] and modified it in June 2025. Even though the interim update was withdrawn from the HER website on 15th, the court held the legal challenge was not academic because the individual claimants remained directly affected. However, it found that the Good Law Project itself lacked standing because it is not personally or directly affected by the decision which was being challenged in this case.
As regards the challenge that the interim update unlawful was wrong in law and that the EHRC breached its statutory duty to give advice or guidance by only giving guidance about single sex facilities rather than more general issues relating to the gender reassignment protected characteristic. enactment the court held that the interim update was not unlawful. The guidance was concerned with the provision of single sex lavatories and facilities for washing and changing, consistent with the Equality Act 2010 and the Workplace (Health, Safety and Welfare) Regulations 1992. In light of the judgment in For Women Scotland the EHRC had acted within its statutory remit to ensure that its guidance was accurate. and had included the caveat to “take appropriate specialist legal advice where necessary".
As regards the argument that the EHRC’s breached its obligations under Ss.3, 8 and 9 of the Equality Act 2006 to promote equality, diversity, and human rights by not including guidance on other matters, the court held that those provisions did not prevent the EHRC from highlighting only the effect of the judgment on single-sex provision. It did not refer to every aspect of the Supreme Court’s reasoning.
The court also rejected the human rights challenge, finding that trans-inclusive facilities can be provided consistently with the statutory framework. Even if Article 8 rights were engaged, any interference would in principle be capable of justification.
While the interim update has been withdrawn, we await the government’s approval of the EHRC’s revised Services Code.
