Court of Appeal refuses permission to bring legal challenge against EHRC over consultation period

On 6 June 2025, the High Court refused permission for Liberty to challenge the consultation process being run by the EHRC to its updated Code of Practice, in light of the recent Supreme Court ruling in For Women Scotland v Scottish Ministers concerning the definition of the words ‘man’, ‘woman’ and ‘sex’ in the Equality Act 2010.

The organisation argued that the equalities watchdog had failed to give individuals and businesses a lawful amount of time to respond to the consultation, which ran until 30 June.

According to James Goudie KC, Tom Cross KC and Ben Mitchell of 11KBW, who acted for the EHRC, Mr Justice Swift “accepted the EHRC’s submission that it was not arguable that the time period was unlawful, ruling that it was sufficient for individuals and organisations to provide responses, even if some of them may wish for more time.”

Liberty said it disagreed with the ruling and filed an appeal, which has now been refused permission in the Court of Appeal.

According to 11KBW, in a judgment with which Nicola Davies LJ and Lewis LJ agreed, Dingemans LJ held that: “(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.”
The law firm added that Dingemans LJ contrasted the issue of “what is desirable” 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.

Responding to the judgment from the Court of Appeal, Sam Grant, Director of External Relations at Liberty, said: “We are disappointed that the Court did not grant us permission to carry on our legal case against the EHRC’s consultation period on its Equality Act guidance.

“Since this process began, we have heard from some of the UK’s largest service providers as well as affected communities telling us that a six-week consultation period is simply insufficient to give them enough time to respond. This guidance has significant implications for how services operate, and how trans people are able to participate in society. In order for everybody to be able to make their voices heard on issues that impact them, this consultation should have been opened for a minimum of 12 weeks just as the previous consultation on this guidance was.”

Last week, the EHRC added a point of “clarification” to its interim update on the practical implications of the Supreme Court’s judgment on the definition of sex in the Equality Act 2010, in relation to the provision of single sex toilets in the workplace.

The revised update, published last week (23 June), adds a point of clarification on the requirements of the Workplace (Health, Safety and Welfare) Regulations 1992, formally abandoning the previous contention that employers must provide single sex toilets, after a claim form was issued by the Good Law Project.

James Goudie KC, Tom Cross KC, Stephen Kosmin and Ben Mitchell, instructed by Ian Tucker and Trilby James of Burges Salmon LLP (Bristol), acted for the EHRC.

Lottie Winson