Responding to the EHRC consultation: What do I say?

The EHRC consultation on its updated code of practice is live until 30th June 2025.

It’s a complex document and challenging issue – one that we should not have to be dealing with, as it has come about as a result of the Supreme Court’s deeply flawed ruling on the definition of sex within the Equality Act 2010. We lost all confidence in the EHRC, under its current Chair, several years ago, but we do hope that Government and any future EHRC Chairs are willing to listen.

For that reason, we will be responding to the consultation and we’d encourage you to do so too. When you do respond, use this guidance, which we created in collaboration with our colleagues at Scottish Trans and Mermaids.

There are people you might want to send your response to in addition to EHRC read more from us on that on our EHRC consultation page.

Download a pdf version

Things to know before you answer

How long will it take?

There are a lot of questions to answer (up to 52 if you respond to all sections). However, even if you only have ten minutes, it’s still really important to have your say and tell the EHRC how you feel.

If you have…

10 minutes: Answer all of the tick-box ‘would you like to provide feedback’ questions with ‘yes’ and answer all of the tick-box ‘to what extent do you agree with’ statements.
15 minutes: Answer all of the tick-box ‘would you like to provide feedback’ questions with ‘yes’ and answer all of the tick-box ‘to what extent do you agree with’ statements, then fill in the open-text ‘general comments’ section at the very end.
30 minutes or more: Answer all of the tick-box ‘would you like to provide feedback’ questions with yes and answer all of the tick-box ‘to what extent do you agree with’ statements, fill in as many of the open-text ‘is there anything you would like to change’ boxes as you can, then fill in the open-text ‘general comments’ section at the very end.

Overall structure of the online survey

Once you’ve said you’d like to give feedback on a particular section, for each proposed change the consultation asks two questions.

First question: This asks, ‘To what extent do you agree or disagree with the following statement: The explanation of the legal rights and responsibilities set out in the new content on [updated area] is clear’.

Response options range from ‘strongly agree’ to ‘strongly disagree’ alongside an option for ‘do not know’.

Note: as organisations, we will be selecting ‘strongly disagree’ almost every time. However please select the option that feels right to you.

Second question: This asks, ‘Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?’ To answer this question, you can write up to 1,000 words in the text box provided.

Note, the consultation form itself does not outline what the proposed changes are. The new/amended content is outlined on the relevant consultation pages or in this word document.

Scope of the consultation questions

Chair of the EHRC, Kishwer Falkner, has confirmed that you don’t have to limit your responses to fit the question asked (which is about how to make things ‘clearer’). You can raise whatever issues you wish.

You don’t need to be an expert on the law to answer. You can:

provide examples from your personal experience
explain how you believe these changes will affect you and others
point out practical problems the EHRC might not have thought of
express any concerns or confusion
ask any questions you feel are unanswered by the EHRC’s explanations

General strategy for responding

The information in this guide is designed as a starting point. It’s important that you don’t copy and paste directly from this document, as large numbers of identical or near-identical responses are unlikely to be counted in the same way.

Focus on pointing out issues, conflicts and conundrums within the guidance, not explaining more clearly how these harmful policies can be imposed.

Additional questions for organisations

If you are responding as an organisation, the survey generates two additional questions. TransActual would recommend responding to these as follows.

“Will your organisation make any changes as a result of this update to the code of practice? For example, any changes to your policies, procedures or practices.”
You can answer ‘yes’ or ‘no’, or if you aren’t sure, you can leave this question unanswered.

“What changes might your organisation make as a result of this update to the code of practice?”

We recommend using your response to share your concerns about implementing the proposed changes or new policies rather than suggesting how you would implement the updated code of practice.

You might want to tell them about:

any difficulties you would have in finding ‘third spaces’ for trans people to use and / or the costs and disruption this might involve to establish. For example lack of space for new facilities, lack of staff capacity or willingness to police spaces, concern around lost business as a result of people avoiding spaces where their gender may be subject to scrutiny
concerns you might have around questioning and establishing who is or who isn’t trans, especially relating to the impracticality of asking people to provide birth certificates and the legal, ethical and practical difficulties involved in distinguishing between one changed by a GRC and not.
the impact the proposed policies might have on your staff – in terms of what facilities and services they can use, but also on having to decide who should or shouldn’t be using which facility.
concerns about the wellbeing of your customers or service users if you were to follow the guidance
concerns about your legal liabilities and the risks of breaching anti-discrimination or privacy protections held by those with the protected characteristic of gender re-assignment and the guidance being vague on how to accomplish segregation without breaching these protections.

What might you want to say in response to the questions?

Here we outline issues you may wish to consider for each section.

Which of the following characteristics protected under the Equality Act 2010 are relevant to your response?

We suggest selecting at least:

Gender Reassignment
Sex
Sexual orientation

but tick whichever apply for you.

Updated legal definition of sex (throughout the Code)

Is there anything you would change to make this update clearer?

We believe this definition of ‘sex’ in the Equality Act 2010 is technically correct, following the Supreme Court ruling.

However, you might wish to question:

Whether this section is clear enough that the definition only applies to the Equality Act 2010, and that a Gender Recognition Certificate still changes a person’s sex in all other relevant UK legislation.
Whether this section is clear enough that the Supreme Court definition of ‘sex’, ‘man’ or ‘woman’ in the Equality Act 2010 does not have any effect on any other definitions, including in everyday language. For example, people can still refer to trans women as women and trans men as men, use correct pronouns and respect people’s identities.
How much this new definition reduces the practical meaning of a GRC, since it no longer changes a person’s legal sex for the UK’s most important piece of equalities legislation.
How this binary and limited definition of ‘sex’ will include intersex people.
How this definition will affect the overall rights and protections trans people have under UK equalities law.

2.1: New content on Gender Recognition Certificates

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

We believe the information provided in this section is technically correct, following the Supreme Court ruling.

However, you might wish to question:

Whether this Code makes it clear enough how trans people will still have full protections under the gender reassignment protected characteristic. (Being a trans person is all about your lived gender not matching your sex recorded at birth, so it’s hard to know what these protections will mean in practice if trans people are now supposed to be treated as their sex recorded at birth in so many situations.)
What definition of ‘biological sex’ is being used here. Many things make up a person’s ‘biological sex’, such as chromosomes, sex characteristics (which can be changed) and hormones (which can be changed).
Why the Code uses the term ‘acquired gender’, given that this is a legal term from the Gender Recognition Act that applies only to those that have a GRC. This section is about how trans people are treated the same by the Equality Act 2010 (whether they have a GRC or not), so you might want to suggest a more accurate and suitable term (for example ‘lived’ or ‘true’ gender).

Note: the term ‘biological sex’ crops up throughout the Code, often in ways that seem inappropriate. We suggest you flag the confusion around this each time.

2.2: New content on asking about sex at birth

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

This section is new to the Code, and will be the first time the EHRC provides guidance on ‘asking about birth sex’ to service providers. We think that if service providers follow this, it might violate trans people’s (and others’) human rights to privacy. It also seems almost impossible to put into practice without causing offence, disruption or discrimination.

You might wish to ask the following questions:

Why is a human rights organisation requiring service providers to impose a policy which the EHRC explicitly acknowledges is potentially distressing?
When members of the public enter a business or public service, at what point should staff check the sex of their customers and clients? Should this be at reception, when being seated at a table, outside the toilets, or other?
Is the EHRC expecting such enquiries to be made by junior staff such as receptionists, given the challenging requirement to ask ‘in a sensitive way which does not cause discrimination or harassment’?
What are the criteria that would make it reasonable for service providers to question a person’s sex recorded at birth? What features or characteristics of a person constitute ‘reasonable’ profiling (e.g. hair length, build, facial hair) and what impact might this have on other people with protected characteristics?
Alternatively, to avoid discrimination, should staff check the sex of every single customer? If so, how should service providers manage the costs of the extra staff time and disruption this will involve?
Who determines whether a person’s (self-reported) answer to the question of their sex recorded at birth is ‘objectively false’ or not?
If a service provider asks about the sex of a potential customer, and then excludes them, other staff or customers could witness this and realise the reason. How would this be compatible with the person’s human rights to privacy under Article 8 of the European Convention on Human Rights (ECHR)?

The Code seeks to rely on birth certificates as evidence of ‘sex recorded at birth’. It could be useful to ask:

Should members of the public now carry their birth certificates with them whenever they might need to use single- or separate-sex public services (including loos)?
How does relying on a birth certificate as evidence of ‘sex’ work when :

Birth certificates can be changed with a GRC;
Many people don’t know where their birth certificate is;
A birth certificate is not proof of identity;
A birth certificate might not reflect the person’s current name, for example if this has been changed through marriage or deed poll;
People born outside of the UK, including tourists and refugees, may struggle to provide a birth certificate.

The Code seems to give permission and advice to duty bearers to make ‘further enquiries, such as confirmation as to whether a person has a GRC’.

You could ask:

What enquiries a service provider is supposed to carry out to confirm ‘whether a person has a GRC’, when a service user would be under no legal requirement to disclose that information?
How this is compatible with paragraph 202 of the Supreme Court ruling which states: ‘possessing a GRC is confidential to the person who has it and subject to stringent restrictions on disclosure [and] the duty-bearer cannot ask whether it has been obtained’?
Whether such enquiries are a potential violation of a trans person’s human rights to privacy.
What happens if a person’s birth certificate is in the correct legal sex and they do not have a GRC because they are not trans, but the service provider doesn’t believe them?

You might also wish to raise the following point on terminology:

Paragraph 2.2.7 uses the phrase ‘The receptionist reasonably thinks that the trans woman is a biological male’. You might want to suggest a rewrite, for example: ‘The receptionist reasonably thinks the woman is trans.’

2.3: New content on defining sex at birth

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

This is a short section on defining sex recorded at birth following the Supreme Court ruling. It touches on pregnancy and maternity provisions.

You might wish to ask:

Whether trans women who are able to breastfeed can access pregnancy and maternity protection if they experience discrimination because of this.
Whether it would be clearer and more inclusive to say that protection from pregnancy and maternity discrimination will now definitely apply to trans men, and not just use the word women in this section.
What definition of ‘biological sex’ is being used here. Many things make up a person’s ‘biological sex’, such as chromosomes, sex characteristics (which can be changed) and hormones (which can be changed).

2.4: Updated description of the protected characteristic of sexual orientation

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

It is unclear exactly what effect the redefinition of ‘sex’ will have on the protected characteristic of ‘sexual orientation’ for trans and non-binary people or those in relationships with them, but we think this will likely be far-reaching.

You might want to ask:

Whether this means that your sexual orientation has now been defined in the law differently to how you would define it yourself. (You might want to explain how this makes you feel.)
Whether a trans lesbian could still access a lesbian-only association, such as an exercise class or book club, or whether a gay trans man could still access an association or club only for gay men?
What this means for people’s choices and options around marriage, and whether they can use religious or secular celebrants?
Whether a person’s sexual orientation will now vary across different pieces of UK legislation, meaning someone may have a ‘gay marriage’ but be ‘straight’ under equalities law, or vice versa.
How religious bodies can have confidence in taking decisions about which couples to marry without discriminating against people, in situations where there sex is one thing for marriage law, and another thing under the Equality Act 2010?
Why section 2.4.6 attempts to divide LGBTQ+ people, when many trans people are lesbian, gay or bi and when the underlying basis of almost all anti-LGBTQ+ discrimination is based on the imposition of differing forms of gender conformity.

4.1: New example on sex discrimination by perception

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

We believe that if trans people only have protection from sex discrimination in their acquired gender if they ‘pass’ as a cisgender person, this will cause significant problems.

It would be useful to ask:

Whether trans people are now more vulnerable to sex discrimination than they were before, because they now have no legal mechanism by which to access the full range of sex discrimination protections in their acquired gender
Whether people can now more easily deny that they have discriminated against a trans person. (For example, if a trans woman X with a GRC is passed over for a promotion in favor of a man, and makes a claim on the grounds that this was because she was ‘perceived as a woman’, her employer could just say ‘oh no, I know X is trans, therefore there is no sex discrimination here.’)
How it makes sense to propose that a trans woman might claim ‘discrimination by perception’ due to her gender expression and lived gender, and yet not be treated as a woman in other areas of the Equality Act 2010.

4.2: Removed reference to superseded case law

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

While it seems these protections can now apply to trans men, they also likely now exclude trans women.

It would be good to ask whether:

Trans women who breastfeed are still protected from the discrimination they might face because of this.
Non-binary people are also still protected from pregnancy and maternity discrimination.
The EHRC agrees it is still important to use inclusive language around pregnancy and maternity.

5.1: New example on sex discrimination – same disadvantage

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

This section again reflects the watered-down sex protections trans people are now supposed to rely on.

You could ask:

Whether trans people are now more vulnerable to sex discrimination than they were before, because they now have no legal mechanism by which to access the full range of sex discrimination protections in their acquired gender.
What safeguards are in place to make sure an unscrupulous employer cannot ‘cheat the system’ by using a trans woman rather than a cis man as a comparator when responding to sex discrimination claims by cis women.
How it makes sense to propose that a trans woman might claim ‘same disadvantage’ discrimination due to her gender expression and lived gender, and yet not be treated as a woman in other areas of the Equality Act 2010.

8.1 Updated example on harassment related to sex

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

This continues to reinforce the significantly watered-down sex discrimination protections which trans people are now afforded under the Equality Act.

You could ask:

Whether trans people are now more vulnerable to (sexual) harrassment than they were before, because they now have no legal mechanism by which to access the full range of sex discrimination protections in their acquired gender.

Whether people can now more easily deny that they have committed sexual harassment against a trans person. (For example, if a trans woman with a GRC makes a claim of harrassment on the grounds of her perceived sex, her harassers could say ‘oh, but we know she’s trans, therefore there is no sex discrimination’.)
How it makes sense to propose that a trans woman might claim sexual harassment due to her gender expression and lived gender, and yet not be treated as a woman in other areas of the Equality Act 2010.
Whether deliberate, repeated and unwanted misgendering of a trans person will still be considered potential harassment as it currently is under the 2011 Code of Practice.

12.1 New example on women-only associations 

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

A key point here is that the Code gives no indication at all of how women- or men-only associations that wish to be trans inclusive can do so.

This would include:

A men-only club or association that wishes to include trans men (though not cisgender women)
A women-only club or association that wishes to include trans women (though not cisgender men)
A lesbian-only club or association that wishes to include trans women
A club or association only for gay men that wishes to include trans men

You could ask:

Whether this change interferes with the right to freedom of association.
What this means for the many associations and clubs, especially groups specifically for gay and bi men, or lesbians and bi women, who are highly accepting, supportive and welcoming of trans people, and wish to include trans people in the way that aligns with their identities.
Whether the EHRC has made sufficient effort to advise on ways to operate trans-inclusive associations.
How people who run associations are expected to identify trans applicants ‘in a sensitive way which does not cause discrimination or harassment’ and without breaching privacy rights.
What impact this change will have on the ability of the general public and society as a whole to welcome, support and include trans people in UK life.

13.1: Updated section on competitive sport

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

The explanations in this section are complicated and unclear. The Code seems to suggest that trans people cannot be barred from a ‘gender-affected activity’ (including those that align with their gender identity) unless this can be justified on the grounds of safety and / or fairness. At the same time, the Code seems to assume that trans men will compete with women, and trans women will compete with men.

You might want to ask:

How people who run sports clubs or events are expected to identify trans applicants ‘in a sensitive way which does not cause discrimination or harassment’.
Whether event organisers will have the resources to check all participants’ ‘biological sex’, given that the Code recommends that everyone should be treated the same.

How sports clubs and event organisers will protect those trans people who have GRCs, given the additional privacy protections under the Gender Recognition Act.
Whether the EHRC has made sufficient effort to advise sporting bodies on how they can operate trans-inclusive clubs and events, such as including trans women into women’s sporting activities (and vice versa).
Whether will be at risk of sex discrimination claims when they seek to include trans people according to their lived genders.
Whether the EHRC has made it clear enough that these provisions do not apply to non-competitive sports and activities.
What impact this change will have on the ability of society as a whole to welcome, support and include UK trans people in everyday life.

13.2: Updated section on separate and single-sex services for men and women

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

This section is largely focused on when services can be provided separately or differently to men and women, as opposed to shared, mixed-sex services. Most of this is the same as before the Supreme Court ruling; the main difference is that providers now need to take trans people into account when deciding whether a separate- or single-sex service is justified (see section 13.3).

We have no particular comments for this section, but if you have any thoughts, questions or issues, add them here.

13.3: New section on justification for separate and single-sex services

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

This section only focuses on how to exclude trans people from services, not on how to include them. It seems to create a situation where service providers are at risk of acting unlawfully, no matter what they do. For example:

When providers offer separate- or single sex services, they are at risk of indirect discrimination against trans people, because trans people ‘are likely to be disadvantaged by this, by comparison to those who are not trans.’ (13.3.7)
If a service wishes to include trans people according to their gender, this ‘is very likely to amount to unlawful sex discrimination against the people of the opposite sex who are not allowed to use it’. (13.3.19)
Service providers who seek to include everyone through entirely mixed-sex facilities are in danger of acting unlawfully in the form of sex discrimination against women. (13.3.20)

It would be useful to ask:

How services are realistically supposed to make decisions that treat everyone fairly and that are deliverable under the Equality Act 2010, without running foul of the law?
If service providers are now being asked to choose one form of discrimination risk over another.
What might be the practical issues and costs for service providers who may now need to offer a wider variety of services or facilities – for example men’s, women’s and gender neutral changing rooms.
While providers are trying to make the necessary changes, whether they will be at risk of acting unlawfully in the meantime by trying to still accommodate everyone. Will some businesses have to temporarily close to avoid breaching the law while they invest the required time and resources to ensure adequate facilities?
Whether the EHRC has considered that ‘third-space’ options — including accessible facilities — might not currently exist in certain settings, might be extremely limited in availability and / or might be difficult to access.
Whether the EHRC has made sufficient effort to offer advice to service providers who wish to remain trans inclusive on how they could do so. (You may want to provide examples of trans inclusive services you have used and why these have been so important for you).
Whether there is now any way for a female-only service to lawfully include trans women but exclude all cisgender men, or a male-only service to lawfully include trans men but exclude all cisgender women, as there was prior to the Supreme Court ruling.
What the potential human rights impacts are for trans people of being completely banned from services that align with their lived or expressed gender.
What Public Authorities, who have a duty to also consider Human Rights when providing services, should do about the fact that excluding trans people will have enormous impacts on trans people’s rights to privacy, safety and non-discrimination.
What impact will this change have on the ability of the general public and society as a whole to welcome, support and include trans people in UK life?
Whether the impact on people has been assessed in relation to the likely increase in informal “policing” of single-sex spaces and services. For example, women or men being harassed in, thrown out of, or worse, in women’s or men’s facilities, because someone thinks they “look trans”. It is important to note that this disproportionately impacts gender non-conforming people, some lesbian women, and Black and brown women.

13.4: New content on policies and exceptions for separate and single-sex services

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

This section is extremely messy and seems to rely on various niche and inconsistent explanations to try and ensure single and separate-sex services can still operate sensibly.

It would be good to ask:

Why such ‘policies and exceptions’ can be used to include people of the ‘opposite sex’ in single sex services sometimes, but such flexible ‘exceptions’ can never be used to allow the inclusion of trans women in women’s services, or trans men in men’s services.
The Code indicates it is likely to be lawful to include an accompanied male child in a women’s changing room because he does not pose a safety risk. Given this, why can trans women not be similarly included, given that there is no evidence that their inclusion poses a safety risk either? Trans women have been using gender-aligned services with the support of the law for decades and there is no evidence of an increased safety risk from this practice.
Why the EHRC, as an organisation tasked to uphold the dignity, safety and privacy of everyone (including trans people), has ignored the possibility of using this ‘flexibility’ to suitably accommodate trans people according to their presenting gender?

13.5: Updated section on separate or single-sex services in relation to gender reassignment

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

This section sets out how trans people can potentially be banned from both male- and female-only services. It also introduces what we believe is a wholly unworkable and inhumane subjective test for whether or not trans people should be excluded from single-sex services that align with their ‘sex recorded at birth’ – based on if they cause ‘distress or alarm’ to others.

You might ask:

What impact it will have on trans people to be potentially banned from both male- and female services.
Whether it is reasonable to use a trans person’s sex at birth to ban them from facilities in one instance, and their gender presentation to ban them from facilities in the other instance.
Whether the words ‘distress’ and ‘alarm’ feed a discriminatory narrative of trans people being dangerous or threatening.
Whether the EHRC thinks that the exclusion of other protected groups of people from spaces would be justified if their presence causes ‘distress’ or ‘alarm’. For example, would they advocate for the exclusion of a gay man from a men’s hospital ward because it caused ‘distress’ to other patients?
Whether advising that service providers take decisions about excluding trans people based only on a subjective test, related largely to appearance, will increase the discrimination and harassment that trans people face, and potentially put both trans and non-trans people in humiliating and offensive situations.
Whether the EHRC has explained what legal backing, if any, can be given to the recommendation that trans people should not be left with no services to use at all.
Whether the EHRC has considered that ‘third-space’ options — including accessible facilities — might not exist in certain settings, might be extremely limited in availability and / or might be difficult to access.
The EHRC mentions that it won’t be ‘proportionate’ to leave trans people without a service that ‘everybody needs’ such as toilets. Does this mean sometimes it is ‘proportionate’ to leave trans people without a service?
If so what impact will that have on trans people’s lives and wellbeing if they’re left without access to:
- suitable changing facilities at a leisure centre
- a suitable fitting room in a clothes shop
- a suitable gendered support group
How the needs of trans people will be met in a range of critical services, which are often genuinely life-saving. For example:
- sex-segregated domestic violence refuges
- sex-segrated homeless hostels
- sex-segrated hospital wards

Similarly, whether uncertainty about whether someone’s sex recorded at birth is ‘correct’ could increase the risk of delay or even denial of such critical services for those perceived as trans.
Whether the EHRC has made sufficient effort to consider ways services might lawfully include trans people according to their presenting gender.
What impact this change will have on the ability of the general public and society as a whole to welcome, support and include trans people in UK life.
Whether this part of the guidance as a whole undermines the purpose of the Equality and Human Rights Commission – which has legal duties to promote equality, diversity and human rights across society, including for trans people.

13.6: Updated content on communal accommodation

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

This section reiterates how to exclude or segregate trans people from men-only or women-only spaces, where this is communal accommodation.

As in the previous section, you might wish to ask:

Which communal accommodation trans people will be able to use when this is only provided separately to men and women.
Whether the EHRC has made sufficient effort to consider how providers might lawfully include trans people in communal accommodation according to their lived gender.
Whether this section provides any practical or useful information on how the needs of trans people can be met if there is no alternative accommodation.

Final question

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

If there’s anything else you’d like to say that you haven’t already then this is where you can do so. Or, if you don’t want to respond to every question in the consultation, you could share your overall thoughts on the draft Code of Practice here.

Some overarching points to include could be:

This Code is complex, confusing and creates a practical, legal and ethical minefield
It doesn’t provide any guidance on how to include trans people and will make it harder for society to accept, welcome and include trans people in the fundamental activities of day-to-day life
It potentially puts those providing services in a position where they will be breaching people’s human rights if they follow the Code
It creates an environment of suspicion and policing of everyone’s gender presentation, including cisgender people, and increases the risks of harassment, distress and offence to everyone

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Last updated:

17 June 2025