The head of the UK’s equalities watchdog has said she believes a trans person’s right to privacy “doesn’t apply” when it comes to accessing gendered facilities, such as toilets.

Kishwer Falkner, the chairwoman of the Equalities and Human Rights Commission (EHRC), said privacy laws set out by human rights legislation in the UK don’t extend to trans people accessing “single-sex” services.

Appearing before the parliamentary Women and Equalities Committee on Wednesday (11 June), Falkner said the EHRC had taken legal advice which agreed with the commission’s position that Article Eight of the 1998 Human Rights Act did not apply when looking at trans people’s rights in this situation.

The Human Rights Act incorporates the European Convention of Human Rights (ECHR) into UK law and establishes the fundamental rights and freedoms guaranteed for all people, regardless of citizenship.

Article Eight guarantees every person the right to “respect for [their] private and family life, [their] home and [their] correspondence”. It forbids public authorities interfering with that right unless it is necessary to do so in accordance with the law or in the interests of national security.

Committee member and Liberal Democrat MP Christine Jardine argued that the EHRC’s recently published interim guidance, which recommended banning trans people from gendered facilities associated with their gender identity and, in some cases, their birth sex, undermined a “basic right”.

Asked whether forcing trans people to out themselves when accessing gendered spaces was a breach of privacy, Falkner replied: “We don’t think Article Eight rights apply.”

She went on to say the recent Supreme Court ruling on the 2010 Equality Act’s definition of “women” and “sex” supported the EHRC’s position.

However, Good Law Project director Jo Maugham claimed on Bluesky that the court verdict “didn’t address Article Eight at all”.

He cited the 2002 case of Goodwin vs United Kingdom, in which the ECHR ruled that UK had violated Articles Eight and 12 of its Human Rights Charter by forcibly outing trans woman Christine Goodwin, resulting in her facing sexual harassment and discrimination.

EHRC trans guidance could become law within months

Previously pressed to comment on the public consultation regarding proposed changes to the EHRC’s guidance on trans people’s rights to access “single-sex” services, Falkner said the updated details could become law as early as January.

Proposed changes to non-statutory guidance for single-sex service providers include clauses that could force trans people to bring ID documents with them to use a public toilet or changing room.

Service providers could be given the right to confront trans people when “necessary and justified” and demand ID or a copy of a trans person’s Gender Recognition Certificate.

Labour MP Rachel Taylor asked whether a hypothetical women-only running group could still be trans-inclusive under the EHRC’s guidance.

Falkner replied that the group would probably either have to be single-sex or mixed-sex, and would need to “look very closely at who [they were] permitting to be part of that service”.

Under that interpretation, the group would either have to exclude trans women or include men, Taylor claimed before again asking whether she could make the running group trans-inclusive or not.

Falkner agree that women-only groups would have to exclude trans women “in order to secure the protections available in the Equality Act”, or include men.

Asked by committee chairwoman Sarah Owen how she would be able to tell who was trans, Falkner said she could make an “informed judgment”.

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