The UK’s treatment of transgender people may soon place it in violation of the European Convention on Human Rights, according to the Council of Europe’s commissioner for human rights, Michael O’Flaherty.
In a letter to senior members of Parliament, O’Flaherty raised serious concerns about anticipated guidance from the Equality and Human Rights Commission (EHRC) following the UK Supreme Court’s recent gender-definition ruling — warning that the proposed direction risks pushing trans people into “an intermediate zone” where they are “not quite one gender or the other.”
Background: The Equality Act and New Guidance
In September, the EHRC defended its single-sex spaces code of practice, claiming it remained “clear to those who rely on it” despite hundreds of businesses describing it as “unworkable.”
The controversy stems from planned revisions that would reportedly exclude trans people from using facilities such as toilets and changing rooms aligned with their gender identity.
The updates were proposed following the FWS v Scottish Ministers case, in which the Supreme Court ruled that the 2010 Equality Act’s definition of ‘women’ refers to biological women — a judgment critics say could further erode trans inclusion in public life.
“Zero-Sum” Thinking and Human Rights Risks
In his letter, addressed to Sarah Owen, chair of the Women and Equalities Committee, and David Alton, chair of the Joint Committee on Human Rights, O’Flaherty urged lawmakers to ensure the EHRC’s new guidance complies with international law.
“I observe a tendency to see the human rights of different groups as a zero-sum game,” he wrote. “This has contributed to narratives which build on prejudice against trans people and portray upholding their human rights as a de facto threat to the rights of others.”
He warned that misinterpreting the Supreme Court ruling could lead to “widespread exclusion of trans people from many public spaces,” depriving them of the ability to “participate fully and equally in society.”
Concerns Over Privacy and Safety
The commissioner further cautioned that policies restricting access to gender-segregated spaces could force trans people to ‘out’ themselves publicly, breaching their right to privacy under Article 8 of the European Convention on Human Rights.
“Beyond privacy concerns, being forced to disclose sex assigned at birth may also significantly increase people’s vulnerability to harassment, abuse, and even violence,” O’Flaherty added.
He emphasised that debates about trans inclusion must not distract from efforts to end violence against women and girls, suggesting that both causes are compatible rather than in conflict.
Calls for the EHRC to “Try Again”
In response, Jess O’Thomson, head of policy at the Trans+ Solidarity Alliance, said the intervention should serve as a wake-up call for the government and the EHRC.
“This significant intervention from the commissioner makes clear that the EHRC’s new code of practice cannot be laid as drafted,” O’Thomson told PinkNews.
“The minister must reject it and insist the EHRC try again — making clear how to include trans people, not just exclude. Exclusion of trans people from services for their lived gender, the letter makes clear, must be the exception, not the rule.”
O’Thomson added that legal gender recognition must have “real meaning in people’s everyday lives,” not be limited to bureaucratic matters such as pensions or marriage.
“The government is going to have to ensure this in order to comply with its human rights obligations.”
What Happens Next
The UK government has not yet responded publicly to O’Flaherty’s letter. Any updated EHRC code of practice would still require ministerial approval before being formally adopted.
However, human rights observers warn that if the guidance proceeds as currently drafted, it could trigger legal challenges in both domestic and European courts, testing Britain’s ongoing compliance with the European Convention on Human Rights — a treaty it remains bound by despite Brexit.
