Transgender people risk being excluded from many public spaces as a result of the recent UK supreme court judgment and must be protected from discrimination, a human rights expert has said.
Michael O’Flaherty, the Council of Europe commissioner for human rights, said he had concerns about the climate for transgender people in the UK after April’s supreme court ruling that the legal definition of a woman in the Equality Act 2010 refers to biological sex.
Interim advice issued after the judgment by the Equality and Human Rights Commission (EHRC) in effect banned transgender people from using facilities according to their lived gender and allowed services to request birth certificates to ensure single-sex services were protected. Its formal guidance, understood to be similar, was submitted last month to Bridget Phillipson, the minister for women and equalities and also the education secretary, who must decide whether to accept it.
In a letter to the respective chairs of the UK parliament’s joint committee on human rights and the women and equalities committee, O’Flaherty said there was a tendency in the UK to see the human rights of different groups as a “zero-sum game”.
He added: “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.
“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.
“This, in turn, may severely infringe on their ability to participate fully and equally in society. This is particularly the case, as discussions about how access to services and facilities will have to be regulated following the judgment have tended towards the exclusion of trans people.”
O’Flaherty, who explored the situation of transgender people on a recent visit to the UK, said there should be clear guidance on how their exclusion could be minimised “to situations in which this would be strictly necessary and proportionate, in line with well-established human rights principles”.
O’Flaherty said he was concerned that blanket practices or policies on access to gender-segregated spaces “would require trans people to habitually ‘out’ themselves publicly when accessing services or facilities, either directly (by being asked about their sex assigned at birth) or indirectly (by having to use services or facilities in such a way that it becomes apparent they are trans)”. Such forced or non-consensual disclosure fell within the right to private life under article 8 of the European convention of human rights, he said.
“Beyond privacy concerns, being forced to disclose sex assigned at birth may also significantly increase people’s vulnerability to harassment, abuse and even violence,” he added.
The supreme court case was brought by the gender-critical group For Women Scotland, which has criticised delays to new policies and guidance after the ruling.
O’Flaherty said his letter “in no way detracts from the need to continue improving measures to prevent violence against women and girls, as well as the protection and promotion of women’s rights and gender equality more generally. I am 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.”
This article and its subheading were amended on 14 October 2025. An earlier version said Michael O’Flaherty was the European Council’s commissioner for human rights. His role is actually with a different body, the Council of Europe.
