Naomi Cunningham at Legal Feminist on the ministerial foot-dragging:

Regulatory impact assessments are normally carried out in order to assess the effects of a proposed change in the law. The government should not need to be told that an EHRC Code of Practice does not change the law. Neither should it need to be told that a Supreme Court judgment on the meaning of a 15-year-old act of parliament does not change the law. In For Women Scotland v Scottish Ministers, the Supreme Court has authoritatively interpreted the Equality Act 2010; that means it has told us what the Act meant ever since 2010.

…

A code of practice that is demonstrably erroneous (as the EHRC’s 2011 Code, which the current draft is intended to replace) is worse than useless: it’s still admissible in legal proceedings, and courts and tribunals have a duty to take it into account so far as relevant, but they are bound by the Supreme Court judgment. So the defunct Code of Practice will continue to rattle around confusing people — or in some cases providing them with the excuse they want to continue to act in defiance of the law. But every time a claim actually comes to court, the judge will still have to follow the law as set out by the Supreme Court. 

…

The proposed regulatory impact assessment looks remarkably like an act of simple cowardice. The government knows that a code of practice doesn’t make or change the law, but only explains it. It knows that this is not what regulatory impact assessment is for. It knows that many employers and institutions are currently delaying complying with the law until the new code is issued. It knows that many thousands of individuals are suffering ongoing legal wrongs because of the ongoing delay. It knows that a proportion of those will continue to bring claims, and the courts and tribunals will clog up with cases, and public authorities and private employers will continue to pour legal fees into defending them. 

But it also knows that the new code of practice will be unpopular with many of its supporters. It is seizing on the idea of a regulatory impact assessment to delay the inevitable; and to redirect the fury of its activists to the courts and tribunals, and to the brave individuals who will have to go to court at great personal cost, often one by one, sometimes in groups like the Darlington nurses, to enforce their rights. It’s a craven exercise in blame-shifting. 

It’s a toddler ploy. Toddlers can come up with endless reasons they can’t put their shoes on or get out of that mud puddle or stop teasing the dog. Magic gender is a toddler ideology.