We are not lawyers and do not give legal advice. This summary is intended to help explain the changes in the new Code of Practice and what this might mean for our community. It should not be read as directive, and those who have duties under the Equality Act and Human Rights Act should obtain legal advice where required.
We may update this page over time as our understanding of the Code changes.
After over a year of uncertainty following the Supreme Court ruling on the meaning of “sex” in the Equality Act, the Equality and Human Rights Commission’s (EHRC) new Code of Practice for Services, Public Functions and Associations (“the Code”) has been laid before UK Parliament by the UK Minister for Equalities. You can read it here.
This updated Code leaves trans people with less access to their rights than before the Supreme Court ruling in April 2025, and cements exclusion and segregation into the statutory guidance that businesses, services, and public bodies across the UK are strongly encouraged to follow.
Whilst we hoped there was a possibility for the dignity and human rights of trans people to be taken in to account with the development of this new Code, this has been almost completely ignored. The Code treats trans people as second class citizens and as essentially a “third sex”, an approach that is completely contrary to the original intentions of both the Equality Act 2010 and the Gender Recognition Act 2004, which it now renders almost obsolete for tens of thousands of trans people across England, Scotland and Wales.
The updated Code was laid before the UK Parliament late in the afternoon of Thursday 21st May 2026, just shortly before the UK Parliament dissolved for the next week. Having laid the Code means that the UK Minister for Equalities Bridget Phillipson approves of this updated version of the Code following the changes made to it by the EHRC, and has published it for MPs, Lords and the public to see. You can read the Minister’s statement here.
After 40 days starting on 1st June, if there are no objections from the Houses of Commons or Lords, the Code can be made statutory by order of the Secretary of State. However, there’s no guarantee that MPs or Lords will be given the opportunity to debate or vote on the Code. At this point, it is very unlikely that any changes will be made to the Code, and highly likely that it will come into effect as it is currently.
For more detail about what the updated Code says and what we believe it means for trans people, allies, and service providers, see our thoughts below.
The EHRC’s Code of Practice is over 300 pages long, and so these are just our initial impressions after a few days of reading over it. The changes we cover below largely relate to the Code’s suggested treatment of trans people, but this is just a small section of what the full document covers. We will do our best to keep you updated with any changes to our understanding of the Code or further developments surrounding it.
While some areas of the Code seem actionable, others are very much not, and so it may be a very long time before we really understand the full implications of these changes, see how and if services and associations implement them, and even how they are decided in court if/ when legal challenges arise.
This Code of Practice specifically covers services, public functions and associations, but there are others concerning other areas of the Equality Act which may also be updated in due time, such as the Code of Practice on Employment.
In summary, this Code covers: the provision of goods and services, whether free or paid for by the service user; where a body has a duty to provide a public function under the Human Rights Act; and associations of over 25 members that have some sort of rule regulating who can be a member. The Code does not cover education, premises, transport, ships and hovercraft, or employment services.
The Code is divided into 14 chapters, each of which is made of many numbered paragraphs. For example, the 12th paragraph in chapter 2 is then “2.12”. Where we quote from or reference the Code directly, we have included these paragraph reference numbers in square brackets.
This explainer is very long and includes some content that may be distressing to trans people and our allies. A version of this webpage is available as word document here (note: clicking this link will begin a download.)
We have divided up our analysis below into sections on what the updated Code says, and then our thoughts on why it fails the three “tests” we set for it being fit for purpose.
It’s hard to give simple summaries of a lot of the changes the Code makes, because in many places it is contradictory or confusing, but we have done our best to give those below. For a full analysis, please read the corresponding section further down the page.
Followed by:
The updated Code states that:
“The Supreme Court in For Women Scotland Ltd v The Scottish Ministers […] has ruled that a GRC does not change a person’s legal sex for the purposes of the Equality Act 2010. The judgment held that ‘sex’, ‘woman’ and ‘man’ mean, respectively, biological sex, biological woman and biological man for the purposes of the Equality Act. The judgment uses the expression ‘biological sex’ to describe the sex of a person at birth. The phrase ‘biological sex’ has the same meaning when used throughout this Code. This is also referred to as ‘sex at birth’ in this Code.” [2.49]
Further it states that “in relation to the [Equality] Act, a person’s sex remains their biological sex, whether they have a [Gender Recognition Certificate] or not.” [2.50]
This means that for the purposes of the Code, and for how the EHRC and UK Government understands the Equality Act, trans people should be treated as our sex assigned at birth – so a trans man should be treated as a woman, and a trans woman as a man. The Code treats “biological sex” as being synonymous with “sex at birth”, and presumes that these are binary, but gives no clear definition for either.
The next paragraph does clarify that “This Code only relates to the application of the Equality Act 2010. It does not deal with the implications of the For Women Scotland judgment for the application of section 9 of the Gender Recognition Act 2004 to any other legislation.” [2.51] While this clarity is welcomed, in the wake of the Supreme Court judgment we have already seen many examples of how this definition of “sex” to always mean “sex at birth” has slipped out of the context of the Equality Act and into many other areas of life. We are concerned that this updated Code will continue this trend, and will be used as “evidence” that trans people should be treated as our “sex at birth” in all areas of life, despite this acknowledgement that it only applies to the application of the Equality Act.
Further, while it is true that a Gender Recognition Certificate (GRC) still has an effect in other areas of legislation, such as marriage law, this interpretation completely nullifies one of the main effects of legal gender recognition, as has been acknowledged by organisations like ILGA Europe. The Gender Recognition Act 2004 states that:
“Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).”
While there were always some exceptions to this, it is clear that if a trans person with a GRC is to be treated as their “sex at birth” for the purpose of all service provision, public functions, and associations, then their acquired gender is not being treated as their sex “for all purposes”. If this is the understanding of the law that the UK Government and EHRC believe is correct following the Supreme Court judgment, then we would expect them to express grave concern about this as a breach of trans people’s human rights to practical and effective legal gender recognition, as well as our privacy, and to make steps to change this.
The Code makes clear that trans people are still protected from some forms of discrimination because of gender reassignment (the term used by the Equality Act to cover trans status) whether or not they have a GRC [2.52], and from sex discrimination both for our “sex at birth” and our “perceived sex in [our] acquired gender” regardless of our GRC status [2.53]. This means that in the provision of services, public functions, and associations, it would be against the law to treat a trans person less favourably because they are trans, because of their “sex at birth”, or because of their (perceived) gender identity.
“Perceived” sex is based on how the perpetrator of discrimination views the person they are discriminating against, regardless of whether this is accurate to a person’s identity. The Code explains this using an example of a trans woman who applies to be the treasurer of an association, but is rejected because the association “want a man to take the role on as they do not think a woman could do the job as well.” [4.53] The example goes on to say that “[t]he trans woman would have a claim for direct discrimination because of her perceived sex as a woman, no less than if she were a biological woman.”
There are other similar examples to this throughout the Code, where trans people are understood and treated in line with our gender identities (even if this includes less favourable treatment, for example based on misogyny), but still it insists that this is essentially a mistake in the perception of the perpetrator, rather than a reflection of trans people’s lived realities. The Code constantly struggles with trying to enact the Supreme Court ruling that we should always be treated as our “sex at birth” while also knowing that in practice this is not how we are treated by others, and to do so may not be lawful in some situations, as we discuss below.
Many who have defended the Supreme Court judgment and the updated Code have claimed that trans people will still be protected from gender reassignment and perceived sex discrimination. However, we believe that many trans people will be even less likely to report, or take action on, discrimination based on their gender identity if this is only covered by a technicality, and requires them to disclose sensitive personal information about themselves like their trans status and/or “sex at birth”. This change also impacts trans people’s ability to be used as comparators in other people’s sex discrimination claims.
The updated Code states that non-binary and gender fluid people would only be covered by gender reassignment protections “if they meet the definition of gender reassignment as set out in the Act” [2.44], which is that they are “proposing to undergo, [are] undergoing or [have] undergone a process (or part of a process) for the purpose of reassigning [their] sex by changing physiological or other attributes of sex.”
The Code gives an example of what this may mean for gender fluid people [2.45], but does not explain what this would look like for a non-binary person. Some interpretations of the Equality Act suggest that “changing physiological or other attributes of sex” mean that only changes from “male to female” or “female to male” would be covered, because the term “sex” is used, and this must now be read as either “male” or “female”. However, the Equality Act definition of gender reassignment uses “sex” and “gender” interchangeably, and so it could be read as changes that people make to different aspects of their life that communicate different aspects of their gender identity. For example, if a non-binary person decides that they wish to be referred to using “they/them” pronouns, this is a clear indication that they are reassigning one of the “other attributes of sex” from one way of understanding their gender to another, even if this is not binary. While again, the Code does not give an explicit explanation on this, it seems unlikely that they would include the possibility of non-binary people being included under gender reassignment if they did not believe that this was possible.
Finally, the section on discrimination because of pregnancy and maternity states that “The pregnancy and maternity provisions in the Act apply on the basis of sex and so trans men are included in the protections against discrimination provided by these provisions.” [4.55]
We know that trans men and transmasculine people are often made to feel unwelcome in spaces and services related to pregnancy that are not designed with them in mind, which may lead them to avoid these spaces, potentially leading to worse health outcomes or impacts on their decisions whether or not to have children. We also know that trans men and transmasculine people also face pregnancy discrimination precisely because they are men or masculine-presenting people who are pregnant, and so we think that rooting their protections from this in their “female” status misunderstands the nature of the discrimination they face, and will likely make them less willing to report it.
Because maternity discrimination protection only applies to people who have given birth, it would not cover a breastfeeding trans woman. However, the Code states “Conduct relating to breastfeeding may also constitute unlawful harassment on the grounds of sex” [4.70]. Unlawful harassment includes harassment “related to” the protected characteristic, even if the harasser knows that the harassed person does not possess that characteristic [8.28]. Therefore, harassment of a breastfeeding trans woman may well be unlawful sex harassment.
The Code has not provided examples for services as to how they might include trans people within the law. Instead, it focuses on how we can be excluded from services in line with our gender identity, and in some circumstances, excluded from services in line with our “sex at birth”. Although the Code does ask that trans people are considered, it does not offer suitable advice as to maintaining the rights and dignity of our use of services, nor any lawful way as to inclusion in single-sex spaces in line with our gender identity.
The Code states that single-sex services, in order to rely on the single-sex exemptions in the Equality Act, must be based on “sex at birth” and cannot include trans people in line with our gender identity.
“If a service provider (or a person providing a service in the exercise of public functions) admits trans people to a service intended for the opposite sex, then it can no longer rely on the exceptions set out at paragraphs 13.99 to 13.111. This means that if a service is provided only to women and trans women or only to men and trans men, it is not a separate-sex or single-sex service under the Equality Act 2010.” [13.130]
“A service like this is very likely to amount to unlawful sex discrimination against the people of the opposite sex who are not allowed to use it. A service which is provided to women and trans women could also be unlawful sex discrimination or lead to unlawful harassment against women who use the service. Similar considerations would apply to a service provided for men and trans men. It is possible to offer a mixed-sex service alongside a single-sex service. A mixed-sex service must be open to all service users.” [13.131]
Not only does the Code state that trans people can be excluded from services that align with our gender identity, but there are also circumstances where a trans person can be excluded from services based on their “sex at birth” if that is a “proportionate means of achieving a legitimate aim” [13.145].
“For example, a trans man might be excluded from the women-only service if the service provider decides that, because he presents as a man, other service users could reasonably object to his presence, and excluding him is a proportionate means of achieving a legitimate aim.” [13.146]
“A legitimate aim for excluding a trans person from a separate or single-sex service for their own sex might be to prevent discomfort or distress for other service users. Service providers should consider whether other service users could reasonably object because they are worried about sharing a single or separate-sex service with someone who appears to be of the opposite sex. That will depend on all the circumstances, including the nature of the service in question and the extent to which the trans person presents as the opposite sex. For this reason, a service provider (including a person providing a service in the exercise of public functions) should only consider doing this on a case-by-case basis.” [13.147]
This has the practical effect of segregating trans people from services in line with who we are, and into so-called “third spaces”. However, the Code states that trans people are likely to be disadvantaged by not being able to access services in line with our gender identity and service providers should consider whether a less intrusive option is available:
“The impact on those who will be excluded from the service includes both the impact on people of the opposite sex generally and the particular impact on trans people of the opposite sex. In separate or single-sex services, a trans man will be excluded from the men-only service because his sex is female, and a trans woman will be excluded from the women-only service because her sex is male. Trans people are likely to be disadvantaged by this, by comparison to people who are not trans.” [13.119]
“The service provider (or person providing a service in the exercise of public functions) should consider whether the disadvantage to trans people, and any other people who may be disadvantaged, outweighs the benefits of achieving the legitimate aim. They should also consider whether there is a less intrusive option than excluding trans people which would be proportionate (read paragraphs 13.137 to 13.141)” [13.120]
The Code also goes on to say that trans people are protected under gender reassignment and cannot be left without access to facilities and services. Doing so is unlikely to be proportionate:
“The service provider should consider whether there is a suitable alternative service for the trans person to use. In the case of services which are necessary for everybody, such as toilets, it is very unlikely to be proportionate to put a trans person in a position where there is no service that they are allowed to use.” [13.148]
“If the service provider does not act proportionately, this is very likely to amount to direct or indirect discrimination because of gender reassignment.” [13.149]
Such spaces may not exist due to building infrastructure or other practical considerations, which has the effect of leaving us with no access to services.
Trans people are protected from harassment under the Equality Act. The Code states:
“[I]f subjecting the individual to the unwanted conduct has the effect of violating the individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them, this will be sufficient to establish unlawful harassment. The intended purpose or motive behind the conduct is irrelevant.” [8.16]
The Code states that the Equality Act prohibits harassment that is a) related to a protected characteristic, b) sexual harassment, and c) less favourable treatment based on sexual harassment or harassment related to sex or gender reassignment. [8.2]
On harassment “related to a protected characteristic”, trans people are protected on the grounds of gender reassignment, but also on the grounds of sex “by perception”: “An individual does not have to possess the relevant protected characteristic themselves for protection from harassment to arise.” [8.28] The Code gives an example for this:
“A trans woman using the gym equipment in her local leisure centre is subjected to comments from male staff members such as ‘watch what you say in front of her, it’s her time of the month again’. As with the example at 8.25, this could amount to harassment. However, in this example, the harassment would be related to the trans woman’s perceived sex.” [8.28]
However, the Code qualifies this by highlighting that the person alleged of perpetrating harassment may be exercising other rights, or sharing views, belief or opinions related to trans people, and that this may not automatically amount to harassment. The Code states:
“It is relevant to consider whether the alleged harasser is exercising any other rights. For example, if they are expressing an opinion related to a religious or philosophical belief, they may be protected from discrimination and harassment because of or related to that belief.” [8.20]
“It is also relevant to consider whether the alleged harasser was exercising any of their convention rights protected under the Human Rights Act 1998. For example, the right to freedom of thought, conscience and religion, or the right to freedom of speech of the alleged harasser will need to be taken into account when considering all relevant circumstances of the case.” [8.21]
This means that holding anti-trans views does not in itself amount to harassment. If, however, those beliefs are manifested in a way that amounts to unlawful harassment under the Equality Act, that conduct will be unlawful. The Code explains that there is quite a high bar for this:
“The belief would only not be protected under the Act if it involves a very grave violation of the rights of others, which is tantamount to the destruction of those rights” [2.80]
Further, in Chapter 4 on direct discrimination, the Code comments that a person should not be subject to less favourable treatment based on a stereotype about a belief they may hold, and gives a specific example related to how those who hold “gender-critical beliefs” view trans people:
“Examples of stereotypes in relation to religion or belief are that persons who hold or manifest certain gender-critical beliefs necessarily have negative attitudes towards trans people, or that persons who hold or manifest the belief that same-sex sexual activity is sinful necessarily have negative attitudes towards gay people.” [4.100]
We value freedom of belief and religion and believe all should have these rights; however, we must note disagreement with the above statement. Gender-critical beliefs often appear to rely on the notion of binary and immutable sex, and fundamentally to contest the reality of trans people – that we can and do change aspects of our sex, and that we should be treated accordingly. To state that believing someone’s lived reality is false can hardly be said to not be a negative view. Likewise, the example given regarding the belief that same-sex sexual activity is sinful is also clearly a negative view.
However, we know and understand that people cannot and should not be subject to less favourable treatment based on what they believe, and that those who have gender-critical beliefs, or beliefs regarding same-sex sexual activity will have a range of views of the ways that LGBTQIA+ people’s rights are realised.
The Code permits associations of over 25 members to restrict their membership based on a protected characteristic. This includes ‘sex’, and if done so, it must be done so on the basis of “sex at birth”. The Code states:
“A trans woman applies to join a women-only association and her application is refused. This would be lawful because membership is based on sex and restricted to women and, under the Act, she does not share that protected characteristic (paragraphs 2.87 to 2.89)” [12.68]
However, the Code also advises that associations can limit their membership to people who have any of more than one protected characteristic, for example sexual orientation and gender reassignment:
“A lesbian, gay, bisexual and trans (LGBT) support group is set up to include gay, bisexual and trans people. Its membership is restricted to people with the protected characteristic of any of those sexual orientations, or gender reassignment. This is permitted under the Act.” [12.77]
Associations can also limit membership to people who have both of two different protected characteristics – 12.76 gives the example of an association limited to Muslim women.
On the basis of these rules, it may be that an association can limit membership to women and to trans women (or to men and to trans men). There is no example given in the Code to clarify this, but the Equality Impact Assessment for the Code published by the UK Government says:
“The Code does explain where membership could be restricted based on sharing multiple characteristics and therefore provides an opportunity for trans inclusion, e.g. a women and trans women association.”
This implies that the way an association is structured and regulated according to its rules allows for trans people to be included in line with their gender identity. However, this is not clear, we further expand on the reasoning around this in our section below on Test 2: Defend Inclusive Organisations. We would not be surprised if this section was subjected to future legal challenges.
There have been significant amendments to the Code from the draft version the EHRC consulted on that are likely to result in trans people being excluded from competing in many sports in line with our gender identity.
The Code states that participation in “gender-affected” sports should be based on “biological sex”:
“Any sex-based rules or arrangements relating to participation in a gender-affected activity (read paragraph 13.65) should be applied on the basis of biological sex. Therefore, trans people should not be included in single-sex or separate-sex competitions for the sex with which they identify. They should also not be treated as that sex for the purposes of any other sex-based rules or arrangements that relate to participation” [13.73]
Gender-affected sports are ones where “an average person of one sex would be at a disadvantage as a competitor against an average person of the other sex due to their physical strength, stamina or physique” [13.65].
However, the Code concedes that the law and interpretation of this exception is uncertain and unsettled, and in particular there is uncertainty as to what “sex-based arrangements” for participation in so called “gender-affected activity” may be lawful [13.66].
The Code highlights that this exemption does not apply to associations who can still create their own rules for their members, which could result in trans inclusion in line with their gender identity:
“This exception applies to service providers and public authorities, but not to associations covered by the Act who organise competitive sporting activities solely for members and their guests. However, associations may still adopt general rules which prevent people from participating in a sporting activity, for example because they have received certain hormone treatment or have hormone levels exceeding a set limit, if this is justified for reasons of safety or fair competition.” [13.80]
We are aware that LEAP Sports are conducting a full analysis of the Code in relation to sport which will be available in due course. We will update our summary to include reference to their analysis when it is available.
The following section looks at the three “tests” we created in partnership with Trans+ Solidarity Alliance and TransActual before the Code was published to determine if it would be fit for purpose:
We don’t think the code passes any of these three tests, and as such think it’s likely that it will lead to breaches of trans and non-binary people’s human rights and dignity, and create further confusion about how services that want to can still include us in their work.
Below we discuss how the Code fails each of these tests in turn.
The new Code does not protect trans people’s access to gendered spaces and disrupts the status quo of trans inclusion that has worked across the UK for many years. It states that:
“If a service provider (or a person providing a service in the exercise of public functions) admits trans people to a service intended for the opposite sex, then it can no longer rely on the exceptions set out at paragraphs 13.99 to 13.111. This means that if a service is provided only to women and trans women or only to men and trans men, it is not a separate-sex or single-sex service under the Equality Act 2010.” [13.130]
This means that trans people cannot access single or separate sex services in line with how we live our lives, and that if a service does allow this, it will no longer be considered a single or separate sex service. Further, the Code states that:
“A service like this is very likely to amount to unlawful sex discrimination against the people of the opposite sex who are not allowed to use it. A service which is provided to women and trans women could also be unlawful sex discrimination or lead to unlawful harassment against women who use the service. Similar considerations would apply to a service provided for men and trans men.” [13.131]
The Code notes that only operating single or separate sex services is likely to disadvantage trans people. [13.119] The Code appears to provide some other options for associations, as these can be provided on the basis of sharing more than one, or having any of more than one protected characteristic [12.75]. For more on trans people and associations, see Test 2: Defend Trans Inclusive Organisations below.
In some places, the Code suggests that trans people could use facilities, such as toilets, that are mixed-sex and separate from those distinguished by “sex at birth” [13.123, 13.124, 13.140 and 13.148]. We think that this may sometimes amount to segregation and does not allow trans people to use facilities that match how we live our lives. Further, the use of separate or neutral space may “out” a person as trans, or complicate access for those that the space was originally intended for. This is often the case with disabled toilets, which are also sometimes designated as gender neutral toilets on account of being single occupancy. We believe that everyone deserves access to facilities that suit their needs, and imagine that many services and businesses would be more inclined to designate existing disabled toilets as gender-neutral rather than building new ones, which could potentially limit disabled people’s access to those toilets if only one is available.
Where alternative facilities are not able to be provided, trans people are then left only with the use of facilities that correspond to their “sex at birth” [13.126]. This may be unsafe for many trans people, who may face intimidation and harassment for using these spaces. We expect that in many cases trans people will desist from using gendered spaces altogether where possible, although many are already doing so because of a rising tide of anti-trans sentiment in recent years.
Confusingly, the Code claims that there will be situations where a service or space may not be able to provide alternative facilities because of the service being provided, the space itself, or the costs of doing so [13.126], while also saying that there may be times where it is appropriate to exclude a trans person from a single or separate sex service that matches their “sex at birth” [13.147], but also that in “the case of services which are necessary for everybody, such as toilets, it is very unlikely to be proportionate to put a trans person in a position where there is no service that they are allowed to use.” [13.148]
While examples are given of when these different options would be appropriate, (including an example of when a service provider may include individual lockable toilets as only providing gendered toilets would disadvantage trans people [13.123]), very little support is offered by the Code to services providers to understand how to apply these competing logics to their own individual circumstances. We think that the Code is neither fit for purpose in how it understands trans people’s lives and needs when it comes to service provision, nor is it practical or clear for service providers.
Despite the Code claiming that the presence of a trans person of the “opposite” sex in a service meaning that it is no longer separate or single sex, it does give examples of when it is appropriate for other people of the “opposite” sex to use these spaces, such as young boys being able to use women’s toilets and changing rooms with their mothers [13.136]. As many have pointed out, toilets and other single or separate sex spaces and facilities are often cleaned by those who are of the “opposite” sex. The Code is unclear on whether their presence would render the spaces as no longer separate or single sex [13.135].
It seems then that the presence of trans people in services is treated by the EHRC as particularly problematic or distressing to others. This is said quite explicitly when examining when it may be appropriate to exclude a trans person from a service:
“A legitimate aim for excluding a trans person from a separate or single-sex service for their own sex might be to prevent discomfort or distress for other service users. Service providers should consider whether other service users could reasonably object because they are worried about sharing a single or separate-sex service with someone who appears to be of the opposite sex. That will depend on all the circumstances, including the nature of the service in question and the extent to which the trans person presents as the opposite sex. For this reason, a service provider (including a person providing a service in the exercise of public functions) should only consider doing this on a case by-case basis.” [13.147]
While this paragraph notes that this would have to be done on an individual basis because it depends on a trans person’s appearance, the Code does not address how this creates differential access to services for different trans people based on a subjective assessment of their appearance, how services should account for this, nor the distress that this exclusion will cause to trans people. To limit a person’s access to services based on an opinion of what they look like – and whether they look “enough” like one person’s understanding of what a man or a woman should look like – is a fundamentally cruel and unworkable way to limit service provision, which violates trans people’s dignity and autonomy and encourages gender stereotyping.
We note too that biological sex is evidentially not binary. People with variations in sex characteristics (or who are intersex) do not have bodies that necessarily align with the binary and common misconceptions around primary sex characteristics. Intersex people, and indeed others, have secondary sex characteristics that may not fit society’s notion of what a man or a woman looks like, whether that is due to variations in sex characteristics or conditions such as Polyendocrine Metabolic Ovarian Syndrome (previously referred to as Polycystic Ovary Syndrome, or PCOS.) Policing this is harmful to all who fall outwith society’s expectations of binary sex and gender, and what a man or woman supposedly “should” look like. This may have an increased negative impact on any woman who does not fit narrow and stereotyped notions of womanhood. This has further implications for older women, women of colour, women with a variety of health conditions, or for people who are intersex.
Further, as there is no way to “prove” a person is trans, or indeed what their “sex at birth” was, this also runs the risk of impacting people who do not dress or present in a way that corresponds with their “sex at birth”, even if they are not trans. This then encourages people, trans or not, to limit how they present to ways that are traditionally associated with masculinity or femininity so that they are less likely to be excluded from services. We expect that this will particularly be difficult for providers to implement and enforce but also leaves them at serious risk of legal action if they do so incorrectly.
When it comes to how providers should ask people about their “sex at birth” or decide who can use what services, the Code is also not very clear. It notes that there are only limited circumstances when it is appropriate to ask about a person’s protected characteristics, but that this does include the provision of single sex services [13.160]. However, it notes that “information about a person’s sex which may also be protected under Article 8 of the European Convention on Human Rights (ECHR)” [13.161], and that “Discrimination or harassment could occur if, for example, individuals are asked about their sex in a way that requires them to disclose this information in public” [13.165]. An “objective justification” must be made for asking an individual about their “sex at birth”, as “a request for information about sex which is not a proportionate means of achieving a legitimate aim could also amount to unlawful indirect gender reassignment discrimination.” [13.162]
The Code notes that “In many cases, the primary means of ensuring that lawful provision is to clearly communicate to potential service users or members that those services are available to those of the same sex only” [13.167] and that things like signage, promotional materials and verbal information should be enough to communicate this. In essence, this is suggesting that in most cases it is appropriate to allow people to self-select how they use services, and that routinely asking people their “sex at birth” is not necessary or appropriate.
It only suggests that a person should be directly asked when, again, it is deemed by their appearance that they might be trans:
“Where […] there is clear evidence of an issue with members of the opposite sex accessing or seeking to access the single or separate-sex service or association in question, it may be legitimate to ask individuals to provide confirmation that they are of the eligible sex by proportionate means. Evidence of such concern might include the individual’s physique or physical appearance, behaviour or concerns raised by other service users. However, service providers, those performing public functions and associations must keep in mind that it is not always possible to be sure of a person’s sex from their appearance. Whether it is legitimate to approach any particular individual to make enquiries about their sex will be a sensitive question that will depend on all the circumstances. [13.168]
Again, providers are being told to make judgements about people’s appearances and to use this subjective judgement as the basis to potentially interfere with their right to privacy. We would also note that it is never possible to “be sure of a person’s sex from their appearance”. Following this, the Code notes that whether it is relevant to make an inquiry based on the appearance of a service user depends on:
This further strengthens the reliance of the Code on subjective judgements about a person’s appearance, and that prying questions about their sex assigned at birth are more likely to be “legitimate” if a person does not look how others expect them to.
Further caveats are also given to asking about people’s “sex at birth” if the facilities in question are “incidental to the primary service.” [13.170] This is not explained, but we would expect that this means where a service, public function or association also provides a single or separate sex service or space such as a toilet, but that this is not the main service they are providing. So, for example, it may not be “practical or appropriate to approach any particular individual to make enquiries about their sex in relation to facilities” such as the toilets that are a part of a local authority’s library, but it may be if someone is entering a gym that has separate changing rooms and classes based on “sex at birth”.
In sum, the Code does not protect trans people’s access to gendered spaces. It replaces decades of understanding of how services could operate in a trans-inclusive way and risks creating exclusion, segregation and uncertainty for services how to operative within the law for those who do wish to include trans people in line with their gender identity. It will also make access to services less safe and dignified for trans people in everyday life.
The new Code does not defend organisations (including service providers, public functions and associations) that already were or wished to be inclusive of trans people. It leaves many with uncertainty as to whether they can still operate as they did before, if they will be at legal risk in doing so, whether they must make changes to their policy, how they practically do this while still meeting the needs of their members or service users, and in some cases if it will jeopardise their constitutions and funding.
We hoped that the updated Code of Practice, coming from our national equality and human rights body, would bolster the confidence of organisations to make reasonable decisions regarding their remit and defend themselves against legal challenge. It does not.
The Code makes little to no suggestions as to how organisations can remain or become inclusive within the law without fear of legal challenge. We think that this means that many will change their provision to be less inclusive, or to only allow trans people to use their services or be part of their associations in more limited ways. This will likely leave trans people without access to, or far less likely to use, services that they need, but also less able to take part in many aspects of socio-cultural and public life. This will have a negative impact on trans people’s lives and mental and physical health, but also on wider society and the development of good relations between different groups. This will also negatively impact how public bodies discharge their duty to “foster good relations” through the Public Sector Equality Duty in the Equality Act
The Code allows for associations to “restrict their membership to persons who share a protected characteristic” [12.66], but also to those who “share more than one protected characteristic (for example Muslim women) [or] have any of more than one protected characteristic (for example lesbian, gay, bisexual or trans people)” [12.75]. While the Code gives a specific example of how a trans woman could be lawfully rejected from a women-only association [12.68], it does seem possible that an association for those who “have any of more than one protected characteristic” could allow for an association to be for women and for trans people, and that, together with the rule about sharing more than one protected characteristic, an association could be for women and for trans women.
The Code’s equality impact assessment also seems to support this view: “The Code does explain where membership could be restricted based on sharing multiple characteristics and therefore provides an opportunity for trans inclusion, e.g. a women and trans women association.”
However, there is uncertainty about this. While the protected characteristic of “sex” in the Equality Act includes references to “man” and “woman”, and the updated Code specifically names “lesbian woman”, “gay man” and “bisexual” people (although these terms are not used in the Equality Act) under “sexual orientation”, there are no similar references to “trans women” and “trans men” in the either the Code or the Equality Act’s definitions of gender reassignment, although “non-binary” and “gender fluid” people are mentioned [2.44].
The Code does mention trans men and trans women specifically throughout the document, often in examples. It also gives examples of associations serving people who share multiple characteristics where one of those is not named in the definition of the protected characteristic – for example, a Muslim women’s walking club [12.76], even though Muslims are not mentioned by name in the Code or Equality Act’s definitions of “religion or belief”.
So, it may be possible to then run an association for women and trans women that is defined as being for “people who share the protected characteristic of being a woman, and those who share the protected characteristic of gender reassignment who propose to undergo, are undergoing, or have undergone a process of reassigning their sex from male to female”, but the Code gives no specific advice on this. Further, as the Code explicitly states that trans men have the protected characteristic of being “women”, it does not seem like they could be excluded from such an association. This may mean that associations may be able to lawfully exclude cis men and include trans women, but not to exclude trans men.
This may have impacts on trans inclusive women’s associations that do not wish to admit trans men because they do not wish to include anyone who identifies as a man. This would impact both cis and trans women’s ability to freedom of association. Previously discussed changes to how single or separate sex services operate may also apply if associations provides services, such as toilets. This may create situations where an association must provide services at odds with how it organises its membership, and creates segregation within its membership.
We would have hoped that if the EHRC believed that this was lawful, that they would have given advice on how organisations could do so, as they will no doubt be aware of the many trans-inclusive women’s organisations who have felt uncertain about whether they could continue operating within the law. Likewise, they will be aware of organisations like Girl Guiding UK and the Women’s Institute, who have been pressured to exclude trans women from their membership after decades of inclusion. To not do so, or to not provide any clarity on whether this can be done, is neglection of the EHRC’s duties.
The Code does not honour the UK’s domestic and human rights commitments. When developing the tests to see if the Code is fit for purpose, we hoped that it would:
It is clear that trans people’s human rights are at significant risk following the publication of the Code, particularly whether or not we can access vital services and facilities without suffering discrimination or harassment, or even access services and facilities at all. This will negatively impact how we go about our day-to-day lives.
The Code states that:
“For example, a trans man might be excluded from the women-only service if the service provider decides that, because he presents as a man, other service users could reasonably object to his presence, and excluding him is a proportionate means of achieving a legitimate aim.” [13.146]
“A legitimate aim for excluding a trans person from a separate or single-sex service for their own sex might be to prevent discomfort or distress for other service users.” [13.147]
The idea that the mere presence of a trans person using a service or facilities may cause discomfort or distress, whether using services in line with our “sex at birth” or in line with our gender, is an affront to the dignity and human rights of all trans people, treats us as “other” and segregates us into separate “third spaces.” The Code does go on to say that we should not be left in a situation with no facilities:
“The service provider should consider whether there is a suitable alternative service for the trans person to use. In the case of services which are necessary for everybody, such as toilets, it is very unlikely to be proportionate to put a trans person in a position where there is no service that they are allowed to use.” [13.148]
“If the service provider does not act proportionately, this is very likely to amount to direct or indirect discrimination because of gender reassignment” [13.149]
However, the Code does say that this should be a balancing exercise, and service providers should weigh-up whether adaptations can be made to meet the needs of all:
“Having carried out this balancing exercise, the service provider (including a person providing a service in the exercise of public functions) may conclude that arrangements or adaptions can be made to meet the needs of all service users, or that it remains proportionate to maintain only a separate or single sex service.” [13.121]
The Code also encourages regressive gender stereotypes by allowing service providers to ask our sex based on a person’s physical appearance. It states:
“Where […] there is clear evidence of an issue with members of the opposite sex accessing or seeking to access the single or separate-sex service or association in question, it may be legitimate to ask individuals to provide confirmation that they are of the eligible sex by proportionate means. Evidence of such concern might include the individual’s physique or physical appearance, behaviour or concerns raised by other service users. However, service providers, those performing public functions and associations must keep in mind that it is not always possible to be sure of a person’s sex from their appearance. Whether it is legitimate to approach any particular individual to make enquiries about their sex will be a sensitive question that will depend on all the circumstances” [13.168]
However, if services being provided on the basis of “sex at birth” is secondary to the main service being provided, it would not be proportionate to ask this:
“It is unlikely to be either practical or appropriate to approach any particular individual to make enquiries about their sex in relation to facilities, such as toilets, which are incidental to the primary service.” [13.170]
The Code goes on to note that there is no fool-proof way to verify someone’s “biological sex” as official documents can be changed with and without a GRC and that it would not be appropriate to ask someone for proof of a GRC:
“Where there remains a genuine concern about the accuracy of the response to a request for an individual to confirm their sex, then the service provider, person performing public functions or association should consider what action is proportionate in the circumstances. There is no type of official record or document in the UK which provides reliable evidence of sex. For example, sex on passports and driving licences may be changed with or without a Gender Recognition Certificate (GRC), and birth certificates may reflect the acquired gender of someone who has a GRC. Therefore, it is unlikely to be proportionate or practical to ask for further evidence of a person’s sex. In such circumstances, it is likely to be necessary to weigh up the relevant factors to decide whether to exclude the individual from the service or association or to permit them to continue to access it.” [13.179]
“Unless it is relevant for operational reasons, whether or not someone has a GRC is unlikely to be relevant information for the purposes of asking about either the protected characteristic of sex or the protected characteristic of gender reassignment. However, if, in the course of asking for such information or otherwise, a service provider, those exercising public functions or an association acquires information that someone has a GRC or has applied for a GRC, onward disclosure of either that information or their sex without consent may be a criminal offence in some circumstances (read section 22 of the Gender Recognition Act 2004).” [13.181]
Whilst the Code is the EHRC’s interpretation of how they think the Equality Act should be applied in practice, it also highlights that public authorities and those exercising public functions also have obligations under the Human Rights Act:
“Because of the close relationship between human rights and equality, it is good practice for those exercising public functions to consider equality and human rights together when drawing up equality or human rights policies.” [1.21]
It is not only “good practice” to do this – public bodies, and those exercising public functions, must uphold the human rights of everyone as contained in the Human Rights Act when exercising those functions, making decisions and making any changes based on the Code.
Whilst the Code is likely to become statutory guidance, it cannot override primary legislation, like the Human Rights Act 1998, which takes precedence over the Code. Compliance with the Code or the Equality Act itself does not automatically guarantee compliance with human rights law. Public authorities could still breach the Human Rights Act if their implementation of the Code is disproportionate or discriminatory, even if following the explicit advice in the Code.
Instances where public authorities, and those exercising public functions, could potentially breach the Human Rights Act are:
Evidently, public bodies and those exercising public functions who have obligations under the Equality Act cannot consider these in isolation and must also consider these in the context of their human rights obligations or risk being subject to legal challenge. It is hard to square both:
If and when conflict arises between Equality Act obligations (as portrayed through the Code) and Human Rights Act obligations, it will be up to the courts as the final arbiter whether the Code, and the actions taken by public bodies / those exercising public functions, can be read compatibly with trans people’s human rights.
After 40 days, around 10th July, if there are no objections, the Code can be made statutory by order of the Secretary of State and can become statutory guidance that services, public functions and associations are encouraged to consider to ensure that they comply with the law. We expect that this is what will happen, and we don’t expect any changes to be made to the Code or any objections from the Commons or Lords to be successful. There is a chance that a motion could be passed to stop this, but there’s no guarantee that a vote on this will be given time in UK Parliament.
However, it’s worth noting that while statutory guidance has weight in the interpretation of law and as evidence in court cases, it is still up to the court to interpret the law, as the Code itself acknowledges [1.6 and 1.7].
Because the Code ultimately fails to clearly instruct services, public functions and associations on when and how it is lawful to include or exclude trans people, we do expect that this guidance is only going to lead to further legal challenges. As such, there may still be further changes to this guidance and/or understanding of the law in future, but this could take months if not years to play out.
In the meantime, trans people in England, Scotland and Wales continue to face a climate of suspicion, exclusion and discrimination in our daily lives. This Code unfortunately further encourages this and is yet another blow against our rights and ability to exist in public space.
The equality impact assessment on the changes made to the Code acknowledges “that the likely impacts on gender reassignment as a characteristic are negative”. They also assess that the updates to the Code following the Supreme Court judgment may negatively impact other characteristics. These include disability (for example because of service providers telling trans people to use the limited provision of accessible toilets), and sex (for example because of policing of single-sex spaces based on people’s appearance).
If the UK Government and the EHRC are correct in their interpretations, and we are in a situation where trans people are not able to safely (or at all) access many essential services like hospitals or toilets, then there is no real choice but for the law to be changed to allow us to live in dignity. As a result of last year’s Supreme Court judgment, the Equality Act 2010 no longer means what it was intended to mean. Trans people’s rights have been pushed back to before the 2004 Gender Recognition Act. The Equality Act needs amended to restore the original intention of Parliament, and trans people’s equality.
We will do our best to make the case for this change in Westminster as well as in Scotland, and to share our understanding of how this Code works (or doesn’t) with the community, service providers, and lawmakers. We’ll keep you up to date on any further changes as they occur.
Finally, we strongly advise that services providers, those who have duties under the Equality Act and Human Rights Act and associations obtain legal advice to ensure they are operating their services in a lawful way that meets the needs of all service users, including trans people.
30 Bernard Street Edinburgh EH6 6PR
+44 (0)131 467 6039 info@scottishtrans.org
Scottish Trans is part of the Equality Network
Scottish Trans is the Equality Network project to improve gender identity and gender reassignment equality, rights and inclusion in Scotland. The Equality Network is a leading Scottish lesbian, gay, bisexual, transgender and intersex (LGBTI) equality and human rights charity.
The Equality Network is a registered Scottish charity: SC037852, and a company limited by guarantee: SC220213.
We are grateful for funding from the Scottish Government
