We wanted to share some important updates that have occurred since April’s Supreme Court ruling on the meaning of ‘sex’ in the Equality Act 2010, and some ways that you can help.
This is far from an exhaustive summary – and of course focuses more on our work than the work of others! We send our solidarity to the amazing individuals and organisations who have been working extremely hard to ensure that trans and non-binary people can continue to live good lives in the face of extreme uncertainty.
Below we cover:
This update was written in November 2025.
The Code of Practice for Services, Public Functions and Associations is statutory guidance produced by the Equality and Human Rights Commission (EHRC) on how services and public bodies should interpret the Equality Act 2010 and put it into practice.
The Code itself isn’t law, but carries legal weight – courts are advised to take it into consideration when considering tribunals on relevant breaches of the Equality Act 2010. Following the Supreme Court ruling, the EHRC consulted on a draft update to their pre-existing Code, which focused almost exclusively on how to exclude and segregate trans people from services.
The consultation received over 50,000 responses from individuals and organisations. Despite the high volume of responses, the EHRC submitted their updated version to the UK Government for consideration only 2 months after the consultation closed, so we have little confidence that these were thoughtfully considered, especially responses that disagreed with their proposals or highlighted a lack of trans inclusion. Because of this, and how the EHRC has behaved towards trans people and our rights over the past few years, we do not expect any positive changes to have been made to the Code following the consultation.
You can read our full (and very long!) consultation response here, and a shorter summary of our key arguments at the bottom of that page.
The EHRC submitted their updated Code of Practice to the UK Government on September 5th. They haven’t made the version they submitted publicly available, so we don’t know if any changes have been made to it since the consultation.
Now that the Code has been submitted, there’s two possible outcomes:
As far as we’re aware, there is no limit on how long the Minister can wait before approving or returning the Code. If the Minister for Equalities does approve it, it must be laid at the UK Parliament for 40 days under a “negative procedure”. That means that there is no guarantee that it will have a debate, let alone a vote.
(Note: something being “laid before parliament” just means that it is formally recognised as being available for members of that parliament to read.)
Anyone interested in the rules around approving or disapproving Codes of Practice can find those here, and anyone interested in more information on negative procedures at the UK Parliament can find that here.
At the time of writing, the UK Government is not saying very much at all on their view on the Code, and it has been just over two months since it was submitted by the EHRC. When asked, their standard line is “The Government is now considering the draft updated Code and, if the decision is taken to approve it, the Code will be laid before Parliament.”
If the Code of Practice that was submitted to the Minister for Equalities is similar to the one that the EHRC consulted on, then we think she should disapprove it. If services across Britain all operate in the way the draft Code describes, this will result in real harm to trans people, and in our view definitely breach our human rights.
Our friends at TransActual and Trans Solidarity Alliance have set up an email writing campaign to MPs. This is so trans people and our friends, families and allies can encourage MPs to write to the Minister for Equalities and ask her to disapprove the Code of Practice, unless it now provides information on how trans people can be included in services as well.
You can find a link that makes this quick and easy to do here: https://actionnetwork.org/letters/scrap-the-bathroom-ban
Because of our concern about the EHRC’s handling of the Code, and our concern about what life would be like for trans people if all services operated in the way it described, we have made a submission to the Global Alliance of National Human Rights Institutions (GANHRI). This is the international body that regulates and accredits national human rights institutions to check that they adhere to something called the “Paris Principles”. You can read more about why we decided to do that, and our submission to GANHRI, here.
The Good Law Project is in court on 12th and 13th November challenging the “interim update” that the EHRC put out very soon after April’s ruling. This was a short post on the EHRC’s website outlining their position that trans people should now be excluded by default from any spaces and services provided separately for women and men with which their gender identity aligns. This post has since been taken down. The Court will decide if the Good Law Project should be granted permission to have their case heard, and if so they will immediately hear the full arguments of the case. You can read all about this on their website.
This is very much not an exhaustive list, but since the Supreme Court ruling the Scottish Government has:
We’re very concerned about the impacts of the revised guidance on trans and non-binary children and young people in Scotland’s schools. The previous schools guidance said that trans pupils should be able to use toilets that align with their gender identity – trans girls could use the girls toilets, and trans boys could use the boys toilets.
This has now been changed to say that there must be separate single-sex toilets for boys and girls, and that this should be provided on the basis of “biological sex”. It also recommends that some gender-neutral toilets are provided, and that these might be the best ones for trans pupils to use. These changes were the result of both the Supreme Court ruling and a separate court case about school toilets over the summer that was taken against Borders Council.
The case in the Borders was about a school that was only providing gender neutral toilets. The Council conceded that the 1967 Schools Premises (General Requirements and Standards) (Scotland) Regulations required schools to provide separate toilets for boys and girls. Because of this, we’re calling on the Scottish Government to urgently reform the Schools and Premises (General Requirements and Standards) (Scotland) Regulations 1967.
These regulations are almost sixty years old, and were developed at a time where almost no child or young person would have been able to be open about their gender identity at school.
They are clearly not fit for purpose if we find ourselves in a situation where trans pupils may be forced to use toilets and changing rooms totally separately from their peers, marking them out as different and segregating them from others, or which do not align with how they identify and live their lives. Some children we’ve heard from have been using toilets that match their gender identity since they started school, and are deeply upset at the idea of using toilets that align with the sex they were assigned at birth.
This is a concrete action that the Scottish Government can take to put us back on a path towards making sure that trans children and young people are properly included and supported at schools. We are calling on them to do so with the urgency that this situation demands.
Read more in our full response to the revised guidance here.
The Scottish Parliament Equalities, Human Rights and Civil Justice Committee (EHRCJ) is a cross-party committee made up of MSPs from the SNP, Greens, Labour and Conservatives.
Soon after the judgment, they wrote to a small group of organisations asking for their initial response. These are all available on the Committee’s correspondence section of their website (although we note that this does include correspondence from organisations that are opposed to the improvement of trans people’s rights.) You can read our response here.
Early in October, the EHRCJ wrote to the UK Minister for Equalities asking for an update on the Code of Practice. The Convener of Equalities Committee, Karen Adam MSP, said in that letter:
“My Committee intends to consider the implications of the updated code once it has been approved by the UK Parliament.”
This may mean evidence sessions at the EHRCJC, and the opportunity for trans people, our allies, and organisations to contact the committee with our concerns. However, if this only happens once the Code of Practice has been approved, it is hard to know exactly what influence this will have. Keep an eye on our website and socials (Facebook, Bluesky, Instagram) where we will let people know if the EHRCJ does hold evidence sessions on the Code of Practice.
You can write to your MSPs about your concerns around the changes to the schools’ guidance, asking them to ask the Cabinet Secretary of Education and Skills to urgently update the building regulations for schools. You can find your 8 MSPs and their contact details by entering your postcode here.
It’s especially important that you contact your MSPs if you are someone who works with trans young people and can facilitate their voices being heard on this issue. Similarly, if you are the parent of a trans child, or have friends who are the parents of a trans child, it is particularly important for the concerns of families affected to be heard.
One thing that we thought was really missing from both the Supreme Court ruling itself, and from the draft Code of Practice that the EHRC consulted on, was any clear consideration of trans people’s human rights and how they would be effected.
So we:
The UN Independent Expert on Sexual Orientation and Gender Identity put out a statement (alongside various other UN experts) in May. It stressed that all actions taken by the UK must be compliant with international human rights law, or the UK Government risks being subjected to legal challenge in future to the European Court of Human Rights (which was how we got the Gender Recognition Act 2004.) The statement highlights that human rights in the UK are at risk and that the Supreme Court ruling may have created legal uncertainty: “We urge UK lawmakers to act decisively to reform and align the legal framework in a way that ensures dignity, equality, and non-discrimination for all”
The Scottish Human Rights Commission put out a statement responding to the ruling in August. They highlighted that any actions taken as a result of the judgment must be human rights compliant, take a human rights based approach and balance everyone’s rights. This is a legal requirement and not up for debate – the Equality Act 2010 is not the only law that needs to be considered when thinking about how to treat people. They also called on the Scottish Government to conduct a human rights audit on all law and policy affected by the ruling.
The Council of Europe’s Commissioner for Human rights wrote to the UK Parliament’s Women and Equalities Committee and Join Committee on Human Rights, highlighting concern about the direction of travel for trans rights in the UK. He stressed that trans people’s human rights must be upheld, discussions since the ruling had focused on the exclusion of trans people, and trans rights should not be seen as in competition or taking away from the rights of others or the actions need to prevent violence against women and girls. He cautioned against seeing human rights as a “zero-sum game”.
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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
