Today the United Nations published the latest report by the sub-committee on accreditation of the Global Alliance of National Human Rights Institutions.
2023
In which the SCA announces a special review of Great Britain’s Equality and Human Rights Commission (EHRC).
The report
The SCA had received 9 submissions from civil society organisations earlier this year, after the EHRC suggested that the UK Government could amend anti-discrimination law to make it easier to discriminate against transgender people. The SCA had, meanwhile, become aware that the EHRC had significantly changed its stance on transgender issues - and that this had been criticised by some as inconsistent with its previous stance and with international standards. Meanwhile, there were also news reports that the EHRC had a toxic internal culture, with allegations of bullying and senior staff leaving.
Then the UN Independent Expert on Sexual Orientation and Gender Identity visited the UK. He said the EHRC’s advice on the definition of ‘sex’ under the Equality Act, is “wholly unbecoming of an institution created to ‘stand up for those in need of protection and hold governments to account for their human rights obligations’”.
The EHRC was given an opportunity to respond to these allegations. It denies wrongdoing. The SCA nevertheless has decided to initiate a special review.
“The SCA is of the view that third party submissions and publicly available information raise serious concerns about the continued compliance of the EHRC with the Paris Principles, including its ability to conduct its mandate independently, to take positions in line with international standards, and its cooperation with civil society.
“In view of the information before it, the SCA decides to initiate a Special Review in accordance with Article 16.2 of the GANHRI Statute in order to determine the EHRC’s ongoing compliance with the Paris Principles.”
What is GANHRI? What is accreditation?
What does this mean? So the EHRC is Great Britain’s National Human Rights Institution (NHRI).
The United Nations encouraged states to set up NHRIs to promote and protect human rights. In 1993 the UN General Assembly approved standards for NHRIs, the Paris Principles.
The Paris Principles require NHRIs to be independent in law, membership, operations, policy and control of resources. They also require that NHRIs have a broad mandate; pluralism in membership; broad functions; adequate powers; adequate resources; cooperative methods; and engage with international bodies.
In the same year, the Global Alliance of National Human Rights Institutions (GANHRI) was established. One of its roles is to accredit NHRIs based on compliance with the Paris Principles.
NHRIs that broadly comply with the Paris Principles are given ‘A status’. This gives them the independent right to take part in UN Human Rights Council meetings, and the right to vote and hold leadership positions within GANHRI.
NHRIs that only partially comply are given ‘B status’.
The EHRC currently holds ‘A status’, and was last accredited in October 2022. In the normal way of things they wouldn’t be reaccredited for another five years. Except here the EHRC faces a special review after just one year.
The special review process
GANHRI has a useful practical guide setting out the various steps in the process. The process can take up to 18 months. Following the review GANHRI can recommend A-status be maintained, that it be downgraded to B status, or that the review be deferred (for no more than 18 months) so the NHRI can provide additional information. Any downgrade takes effect one year later.
My personal view
The EHRC is in a difficult spot. The GANHRI report says the SCA has concerns about EHRC’s independence, its willingness to take position in line with international standards, and cooperation with civil society.
Considering each in turn…
Independence
The basic problem here is that the current Conservative government have all but confirmed that the new EHRC commissioners are there to pursue its policies. In December 2020, Liz Truss gave a speech in which she railed against the failed ideas of the left, blamed Michel Foucault for children learning about racism in schools, and went on to boast about how she’d appointed the EHRC commissioners to “challenge dangerous groupthink”.
“That is why I am appointing a new chair and a wide variety of commissioners to the Equality and Human Rights Commission to drive this agenda forward. […]”
“Under this new leadership, the EHRC will focus on enforcing fair treatment for all, rather than freelance campaigning.”
Since then we’ve seen some baffling interventions by the EHRC, which seem calculated to sabotage progressive reforms or provide political cover for regression. The EHRC suddenly decided that a conversion therapy ban - one of the key priorities for LGBTQI+ human rights defenders - needed to be watered down. Having consistently supported gender recognition reforms, it radically toned down this support. Then, earlier this year, it suggested that the UK Government change the definition of “sex” in equality law to mean “biological sex”. These stances are completely at odds with those of international and regional human rights bodies - but do fit nicely with the Government’s anti-woke agenda.
International standards
The EHRC’s stance on transgender people also brings it into conflict with international standards.
This second edition of Born Free and Equal takes into account developments since the publication of the first edition in 2012, including dec
For nearly a decade now, the UN Human Rights Office has endorsed gender recognition based on self-identification, a stance endorsed by other international and regional human rights mechanisms. States are expected to give access to gender recognition based on a simple administrative process without abusive requirements such as forced medical diagnosis. It also supports a full ban on so called conversion “therapy”.
Companies should #StandUp4HumanRights. Learn about the UN's #LGBTI Standards of Conduct.
The UN Free and Equal Campaign’s standards of conduct for business likewise expects businesses to prevent ill treatment of trans staff, customers or stakeholders. This includes recognising gender identity based on self-identification, and respecting the names and pronouns used by the person concerned.
Independent Expert on sexual orientation and gender identity
Self-identification and a conversion therapy ban also formed the basis of the recent campaigns by the former UN Independent Expert on Sexual Orientation and Gender Identity.
And this is just a flavour. Human rights instruments tend to be interrelated and overlapping. Support for trans rights is found not just at the UN Human Rights Office but among international human rights bodies generally.
Coming at it from the other direction
The direction of travel under Baroness Falkner has been in an explicitly conservative direction. Animosity towards LGBT and in particular transgender rights has been one of the unifying causes of the global ultranationalist and religious conservative movements. The insistence that law should be based on immutable biology is found in the religious conservative response to the feminist, gay rights and transgender rights movements. See, for instance, the publications on transgender issues by the Family Research Council.
The current EHRC board has prominent supporters of the “gender critical movement”, a movement that has been condemned by regional human rights mechanisms.
“The Assembly condemns the highly prejudicial anti-gender, gender-critical and anti-trans narratives which reduce the struggle for the equality of LGBTI people to what these movements deliberately mis-characterise as “gender ideology” or “LGBTI ideology”. Such narratives deny the very existence of LGBTI people, dehumanise them and often falsely portray their rights as being in conflict with women’s and children’s rights, or societal and family values in general. All of these are deeply damaging to LGBTI people, while also harming women’s and children’s rights and social cohesion.” - Parliamentary Assembly of the Council of Europe, Resolution 2417 (2022)
The EHRC is alleged to have worked closely with members of anti-gender, gender-critical hate groups. And this at a time when the anti-gender movement is gaining ground across the globe, with direct links to religious conservative funders in the US, and Russian oligarchs.
Relations with civil society
Finally, the EHRC has irreparably burnt its bridges with civil society. Its alignment with the Conservative government’s culture war politics means that there’s now little possibility of engagement under the current leadership.
The basic problem here is that the EHRC is pitching itself as a neutral arbiter, rather than one that will promote and protect human rights in all circumstances without exception. The EHRC sees its failure to stand up for certain human rights as a sign that it is balancing the competing demands of different groups in society. It complains that the previous policy towards transgender people was pushed by the full time staff at the EHRC, not by the board level commissioners.
One is left with the feeling that the EHRC sees independence not in terms of upholding all human rights even when it annoys the government, but as a top down regulator that decides for itself whether and which human rights deserve protection.
Which is perhaps exactly what Liz Truss meant when she condemned the EHRC’s previous “freelance campaigning”.