Britain could be in breach of European human rights rules if it enforces a Supreme Court ruling allowing women’s toilets to remain single sex, a senior European official has warned. Michael O’Flaherty, the Council of Europe’s Commissioner for Human Rights, told MPs that upholding the ruling could lead to the “widespread exclusion” of transgender people from public life.
In a letter to MPs chairing the Human Rights and Women and Equalities committees, Mr O’Flaherty said such policies could “severely infringe on [transgender people’s] ability to participate fully and equally in society”.
The warning follows the Supreme Court’s decision in April that the terms “woman” and “sex” in law refer to biological sex, not gender identity. That ruling confirmed that single-sex spaces such as toilets can legally exclude biological males.
Campaigners including JK Rowling welcomed the judgment as a victory for women’s rights and safety.
But Mr O’Flaherty said any rule requiring a transgender person to “habitually ‘out’ themselves” when using public facilities, which include toilets, would breach Article 8 of the European Convention on Human Rights, which protects the right to private life.
He wrote that “being forced to disclose sex assigned at birth may also significantly increase people’s vulnerability to harassment, abuse and even violence”.
The commissioner said the UK Government should ensure that legal gender recognition “is not voided of practical meaning, leaving transgender people in an unacceptable intermediate zone”.
He also warned against “narratives which build on prejudice against trans people and portray upholding their human rights as a de facto threat to the rights of others”.
Mr O’Flaherty, who took up the post in April 2024, has also raised separate concerns with the Home Secretary, Shabana Mahmood. In that letter he reportedly expressed worries about the arrest of protestors supporting the proscribed organisation Palestine Action, and urged ministers to ensure that policing does not infringe “fundamental rights and freedoms, including the right to peaceful assembly”.
Maya Forstater, the CEO of sex-based rights charity Sex Matters, accused Mr O’Flaherty of engaging in “trans activism dressed up as human rights advocacy”.
Taking aim at the commissioner, she added: “It’s as if women have no human rights. His letter to the UK Government is more of the same – an effort to overturn UK rule of law based on spurious arguments which are not grounded in human rights at all. Single sex spaces and services protect the human rights of women and girls. It is not for O’Flaherty or anyone else to insist that some men should count as women in the UK.”
Claire Coutinho, the shadow women and equalities minister, branded it a “ludicrous political stunt by an extreme activist masquerading as a neutral human rights expert.”
The ECHR, which is enforced by the Strasbourg-based European Court of Human Rights, has been used to block deportation flights of illegal migrants and to challenge parts of UK asylum policy.
It has ignited furious debate in Westminster, with the Conservative Party pledging that a future Tory government would withdraw from the convention altogether, arguing that it undermines British sovereignty.
However, Labour has said it will not leave the ECHR, with Sir Keir Starmer stating that his government will “look again” at how certain articles are interpreted so that illegal immigrants and foreign criminals can still be deported.
The Council of Europe oversees the continent’s human rights framework. Its convention was drawn up in 1950 and signed by the UK the same year.