Our response to the EHRC's Code of Practice Consultation

From May 20th to June 31st 2025, the Equality and Human Rights Commission (EHRC) hosted a consultation on draft changes to their Code of Practice in light of the Supreme Court ruling on the meaning of “sex” in the Equality Act (new tab). You can read all of the proposed changes here (new tab).

You can read our full response to the consultation here (new tab).

Please note that our response is quite long, and covers some areas that may be upsetting to read as the consultation focuses largely on how trans people can be excluded from services and when we should be treated as our “birth sex”.

You can also read our response to the consultation’s final question below, which provides a summary of the key points we raised throughout the consultation. We also produced a guide to filling out the consultation (new tab), which gives a shorter summary of what we thought about each change and how individuals could respond to them.

What's next?

The EHRC will now consider the responses they have recieved, and may use these to make changes to the Code.

As the draft Code was focused almost exclusively on how trans people can be excluded and segregated from services and spaces, we don’t expect any positive changes to be made to provide clarity on how we can be included. Because of this, it’s vital that we continue to raise awareness about the ways that this Code is confusing and contradictory for service providers, and fundamentally impacts the privacy, dignity, and human rights of trans people.

Once the EHRC have made any changes they will submit the new Code of Practice to the UK Minister for Women and Equalities. The Minister will then consider the new Code, and whether it needs any further changes from the EHRC. If she decides that it doesn’t, she will approve it and lay it before UK Parliament.

This is why even though the consultation has now closed, we strongly encourage you to email your MP and ask them to tell the Minister for Equalities to reject the Code of Practice.

TransActual and Trans+ Solidarity Alliance have developed a template email that you can send to your MP, encouraging them to tell the Minister to reject the exclusionary Code and demand that any new version ensures providers can lawfully include trans people in their services.

Sending an email only takes a few minutes: https://actionnetwork.org/letters/scrap-the-bathroom-ban

"Do you have any other feedback about the content of the Code of Practice that you have not already mentioned?"

Below is our response to the consultations final question, where we summarised our key issues with the proposed changes:

 

We understand that the Supreme Court ruling has fundamentally changed the interpretation of the interaction between the Gender Recognition Act 2004 and the Equality Act 2010 from the one held by successive UK Governments, the Commission itself, and wider civil society organisations and service providers for the past fifteen years. Indeed, we think it is highly likely that the ruling has changed the interpretation of the law from the UK Parliament’s intentions (you can see examples of extracts from Hansard evidencing this in our letter to the Scottish Parliament’s Equality, Human Rights and Civil Justice Committee on pages 19-20 here (new tab).

Whilst understanding that the ruling has changed the way that trans people with Gender Recognition Certificates are (not) recognised for the purpose of the Equality Act 2010, we are extremely concerned about what life will be like for trans people across Britain if the Code of Practice became statutory, and all services, associations and other organisations operate in the way that it outlines.

In our view, the changes proposed in the Code from the 2011 version would cause trans people significant harm. They would negatively impact on trans people’s emotional and physical wellbeing when trying to go about their daily lives and participate in public life, result in trans people having less privacy about their trans status, and significantly increase the inequality and discrimination that trans people face.

Trans people would frequently be segregated from others or excluded from services – particularly where these are provided on a separate or single-sex basis, as a huge range of critical services and facilities are. The changes would also create an environment of suspicion and policing of everyone’s gender presentation, whether they are trans are not, and increase the risks of harassment, distress and discrimination to all.

The totality of these impacts would certainly, in our view, result in trans people’s human rights being breached, and indeed sometimes the human rights of others.

It would turn back the clock decades to a time where trans people were always treated in line with their “biological sex” by services, public bodies, and when participating in public life.

That didn’t work. It meant that trans people could not go to work safely, use services that met their needs, or use public spaces freely. Which is why Courts found that this approach breached trans people’s human rights and caused them to face discrimination.

Urgent action is needed to ensure that Britain does not take a seismic step backwards in the way it treats trans people. Trans people need to be able to access safe, inclusive services, just like everyone else.

The previous interpretation of how the law worked in this area – that single-sex services could include trans people in line with their gender identity but could also exclude them where doing so was a proportionate means of achieving a legitimate aim – allowed for a fair balance. Services could take an inclusive or an exclusive approach (where that exclusive approach was justified). The updated Code of Practice instead says that single-sex services can never include trans people in line with their gender identities.

We also think that outside of the confines of the Code of Practice and the areas of life regulated by the Equality Act 2010, that it is highly likely that trans people will face significantly more discrimination and harassment as a result of the ruling. In particular, the public discourse that has emerged that the ruling has a wider scope than it does – e.g. that trans women are not women and trans men are not men (and that this is not limited to the meaning of these words for the Equality Act 2010). We are concerned that this will embolden those who refuse to acknowledge or accept the way a trans person lives their life and thus lead to trans people frequently being treated without dignity or respect and increase their risk of facing abuse and violence.

If the Commission believes that the draft Code is a complete explanation of how services have to be provided across Britain following the Supreme Court ruling, then we think that the Commission would be failing to uphold its statutory duties if it did not urgently alert the UK Government that the ruling has resulted in an equality and human rights framework that will leave trans people facing discrimination, inequality and human rights violations. This would need to be rectified with primary legislation.

In our view, the draft Code is not a full, fair and necessary explanation of the requirements of the Supreme Court ruling, and we believe the Commission should urgently address the lack of information contained in the Code about how to provide safe inclusive services for trans people.