European human rights watchdog triggers row with Government over warnings

The European human rights watchdog has triggered a row with the Government after issuing warnings over the treatment of transgender people and the policing of pro-Palestinian protests.

Michael O’Flaherty published letters on Tuesday to parliamentary committee chairs and the Home Secretary raising his concerns and indicated both issues must be considered in line with the European Convention on Human Rights.

It comes after the Council of Europe’s human rights commissioner’s visit to the UK in July, as part of his role to monitor and evaluate human rights situations in member states.

But the move has prompted backlash as a Government source said Home Secretary Shabana Mahmood took a “dim view of the arguments” presented and “fundamentally disagrees with the assessment”.

The source added that “it doesn’t help sustain public confidence in the European Convention when the council is seen to intervene in domestic politics and national security” in this way.

In one letter, Mr O’Flaherty warned transgender people in the UK must not be left in an unacceptable “intermediate zone” in the wake of the Supreme Court gender ruling.

He warned that the Government must avoid inconsistencies within UK law that could lead to legal uncertainty for transgender people, after the Supreme Court ruled in April that a woman is defined by biological sex under equalities law.

Writing to Sarah Owen, chairwoman of the Women and Equalities Committee, and Lord Alton, Joint Committee on Human Rights chairman, he said: “It should be ensured that steps taken towards implementing the Supreme Court judgment avoid a situation where a person’s legal gender recognition is voided of practical meaning, to the extent that it leaves trans people in an unacceptable ‘intermediate zone’.”

But Downing Street also responded to Mr O’Flaherty’s concerns on Tuesday, defending the Government’s approach following the Supreme Court’s ruling on gender rights.

The Prime Minister’s official spokesman said: “We are clear that there are laws in place to protect trans people from discrimination and harassment and we proudly uphold a robust legislative framework.”

New guidance from Britain’s equalities watchdog including on transgender people’s use of certain spaces is currently under consideration by the Government after being submitted to equalities minister Bridget Phillipson last month.

Once ministerial approval is granted, the Government must lay the draft code before Parliament for 40 days before it can be brought into force.

Mr O’Flaherty said: “I note that Parliament has an important role as a guarantor of human rights, and in ensuring coherence and compliance.”

He warned of a tendency to see human rights of different groups as a “zero-sum game” which has led to a perception that the rights of transgender people are a threat to others.

He added: “Such a zero-sum approach risks certain inferences being drawn from the UK Supreme Court judgment that could lead to widespread exclusion of trans people from many public spaces.”

He suggested it is “crucial” that new guidance is clear on “how inclusion of trans people can be achieved across all areas, and how exclusion can be minimised to situations in which this would be strictly necessary and proportionate”.

He raised a concern about a risk of requiring “trans people to habitually ‘out’ themselves publicly when accessing services or facilities”, arguing that beyond privacy concerns, this could also “significantly increase people’s vulnerability to harassment, abuse and even violence”.

Mr O’Flaherty noted that not all transgender people want to obtain legal gender recognition but that this should “not in any way diminish their right to be treated with dignity, to be protected from discrimination, and to be able to participate in all areas of everyday life”.

He also said he is concerned “that a debate about violence against women, framed in a way that restricts the human rights and freedoms of trans people, risks undermining the comprehensive, evidence-based approach needed to address this epidemic”.

The Equality and Human Rights Commission (EHRC) said the guidance it has submitted to Government “accurately reflects the law and is informed by the two public consultations we ran to ensure it is as clear as possible”.

Commission chairwoman Baroness Kishwer Falkner said: “The Equality Act 2010 provides for services and facilities to be single-sex where this is necessary and proportionate.

“By definition, this means that members of the opposite biological sex must be excluded. Our code will advise service providers on how they can do this sensitively and in accordance with the law, while ensuring that no-one is left without any access to services such as public toilets.”

She said transgender people remain protected from discrimination by the Equality Act 2010 under the protected characteristic of gender reassignment.

Elsewhere, the human rights chief wrote to Home Secretary Ms Mahmood calling for the Government to ensure that policing of protests over Gaza, since proscribing Palestine Action as a terror group, does not restrict the right to peaceful assembly.

Hundreds of people have been arrested for supporting the group at demonstrations since its ban this summer.

He said: “Domestic legislation designed to counter ‘terrorism’ or ‘violent extremism’ must not impose any limitations on fundamental rights and freedoms, including the right to freedom of peaceful assembly, that are not strictly necessary for the protection of national security and the rights and freedoms of others.”

He also called for a review of laws for policing protests more generally in relation to the UK meeting its human rights obligations.

Mr O’Flaherty raised concerns that the Government’s Crime and Policing Bill currently going through Parliament may not comply with human rights laws.

Referring to a new offence under the Bill which would ban protesters from wearing face coverings, he said it raises questions over “necessity and proportionality” when police have powers for people to remove face coverings in specific cases.

His warning comes as Ms Mahmood has announced further plans to bolster policing powers to consider more restrictions on repeat protests following a wave of pro-Palestine demonstrations.

It is expected that the Home Secretary will respond to the letter in full.