URGENT ACTION NEEDED! EHRC Draft Code of Practice Consultation – Link to EHRC consultation (https://shorturl.at/YbGiK)!The Equality and Human Rights Commission (EHRC) has released its draft Code of Practice on the Equality Act for consultation. This draft, following the recent Supreme Court ruling, is deeply alarming and poses serious threats to the safety, dignity, and rights of transgender and intersex people in particular but also society more broadly. It's vital many voices are heard opposing these harmful changes.
Why respond? This draft Code:- Suggests frontline staff confront gender non-conforming people
- Places trans people at risk of being banned from all parts of a service
- Effectively bans any organisation from being trans inclusive
- Applies rules asymmetrically to trans people
- Ignores intersex people completely
The consultation asks you about various sections. I have summarised key issues for each section, which you can use to help inform your response. (I will probably update here as new points occur to me). There are instructions after to use AI to help phrase these.
General Overarching Points (Relevant to many sections):- Vague terms like "proportionate," "legitimate aim," "necessary," "reasonable objection," and "sensitive" are used without clear, objective definitions or thresholds, leaving them open to discriminatory interpretation and application.
- The Code consistently fails to meaningfully consult or incorporate the lived experiences and safety needs of transgender and intersex people.
- The reliance on a rigid 'biological sex at birth' definition throughout creates numerous conflicts with the Gender Recognition Act 2004, human rights principles, and practical realities, leading to unclear and dangerous outcomes.
Specific Sections:"Updated legal definition of sex"The new definition ("Legal sex is the sex that was recorded at your birth") directly conflicts with the GRA 2004 ("for all purposes") without adequately explaining the reconciliation, scope, or practical impact on GRC holders under the Equality Act.
Fails to address how "sex recorded at birth" applies clearly or fairly to intersex individuals, errors, etc.
Lacks clarity on whether "legal sex" and the protected characteristic "sex" are now entirely synonymous for all Equality Act purposes.
Change 2.1: New content on Gender Recognition Certificates (Paras 2.1.6 - 2.1.9)Issue (2.1.7): The stark misgendering examples ("a trans woman... is a man... for the purposes of the Act") cause profound distress, undermine dignity, and directly lead to unsafe situations, ignoring the lived and often legally affirmed reality of GRC holders. THis language is unecessary.
Issue (2.1.9): The explanation of how trans people are protected from sex discrimination based on "perceived sex in their acquired gender" is unclear and potentially ineffective when the Code simultaneously defines their sex for the Act as their birth sex. How does this practically protect them from harms caused by being forced into spaces incongruent with their identity and appearance?
Change 2.2: New content on asking about sex at birth (Paras 2.2.1 - 2.2.10)- Allows intrusive questioning based on vague/subjective triggers ("reasonably thinks," "genuine concern") risking discriminatory profiling, including racist outcomes against women of colour stereotyped as "mannish."
- Fails to explicitly prohibit the most egregious methods of "proving" sex, such as demands for genital inspection or invasive questioning about medical history. This omission is dangerous.
- The term "objectively falsely" answering (2.2.6) is undefined and highly problematic for GRC holders.
- Suggestion of "confirming" GRC status (2.2.8 ) is impractical and potentially unlawful under GRA s.22, lacking guidance on how this could be done "discreetly and sensitively."
- Example 2.2.7 models poor practice, normalising appearance-based challenges by staff.
- Places receptionist in the example and frontline staff in legal jeopardy of confronting people, whilst respecting privacy, navigating complex data, privacy, gender and equality law with the only instruction of 'be sensitive'.
Change 2.3: New content on defining sex at birth (Paras 2.3.1 - 2.3.5)Issue (2.3.4): Stating "Sex does not include gender reassignment" without detailed explanation of how protections for gender reassignment effectively operate alongside this rigid sex definition creates significant unclarity.
Change 2.4: Updated description of the protected characteristic of sexual orientation (Paras 2.4.1 - 2.4.6)- Defining "same sex" attraction (for "lesbian woman or a gay man") based on the Code's 'biological sex at birth' definition profoundly misgenders trans people's sexual orientations and lived relationships.
- This creates absurd legal contradictions: For example, a trans woman with a GRC married to a cisgender man is in a legally heterosexual marriage under UK marriage law. However, under this Code's definitions they are men in a gay marriage. This is legally incoherent and ethically unacceptable.
- Fails to clarify how the sexual orientations of intersex people are understood or protected.
- Issue (2.4.6): Statement that gender reassignment and sexual orientation are "unrelated" is an oversimplification that ignores lived experiences and potential for intersectional discrimination. It is also completelty unecessary to say that here, so it is unclear what purpose it serves other than division
- Ignores other sexualities like asexuality.
Change 4.2: Removed reference to superseded caselaw (Pregnancy/Maternity for Trans Men - Paras 4.2.1 - 4.2.2)- While aiming to ensure protection, basing it solely on defining trans men as 'female biological sex' for EA2010 purposes is misgendering and fails to clarify how their male identity and dignity are respected during service provision.
- Lacks practical guidance for service providers on respectful communication and treatment.
Change 5.1: New example on sex discrimination - same disadvantage- Unclear which protected characteristic the trans woman's claim is anchored to (sex via s.19A, or gender reassignment).
- Fails to clearly explain how this claim interacts with the Code's definition of her as 'male' for EA2010 sex purposes.
- Simplifies "same disadvantage," potentially ignoring additional transphobic risk factors.
Change 8.1: Updated example on harassment related to sex (Example 8.1.6b)- Example is too narrow (generic sexism) and doesn't clarify how it protects against specifically transphobic harassment or harassment caused by being perceived as female in a male space (where the Code directs trans women).
- Fails to clarify the interplay with the Code's definition of a trans woman's 'sex' as male for EA2010 purposes.
Change 12.1: New example on women-only associations (Example 12.1.3)- Omits any consideration of GRC status for the trans woman applicant, making rights unclear.
- Fails to address potential gender reassignment discrimination if refusal is based on transphobic prejudice.
- Implies a blanket lawfulness for exclusion based on 'biological sex' without nuanced consideration of the association's specific aims or proportionality.
Change 13.1: Updated section on competitive sport (Paras 13.1.6 - 13.1.18 )- Acknowledges "unsettled law" (13.1.14) but fails to offer clear rights-affirming interim guidance.
- Vague definition of "necessary" for safety/fairness when excluding trans people.
- Example 13.1.17 (cis woman claiming indirect sex discrimination due to trans women's inclusion) is highly problematic, lacks legal clarity, and discourages trans inclusion.
- "Medical intervention" criteria (13.1.18 ) are vague and lack ethical/practical guidance.
Change 13.2: Updated section on separate and single-sex services for men and women (Paras 13.2.1 - 13.2.23)- Fails to clarify how the "reasonably object" condition (13.2.18 ) applies to trans people without validating prejudice.
- Does not adequately address the inconsistency of allowing staff of the 'opposite biological sex' (e.g., male cleaners in women's toilets with signage) while implying a trans person (defined by the Code as the same 'opposite biological sex') uniquely negates a space's single-sex nature.
- Insufficient emphasis on mandatory provision of genuinely accessible gender-neutral alternatives before applying exclusions (RADAR key issue makes many 'accessible' loos unusable for non-disabled trans people).
Change 13.3: New section on justification for separate and single-sex services (Paras 13.3.1 - 13.3.20)- Issue (Para 13.3.19): This paragraph, stating that including trans people in single-sex services aligning with their gender identity is "very likely to amount to unlawful sex discrimination against others," creates a severe chilling effect on all trans inclusion. It lacks clear legal precedent for such a broad assertion and must be removed or radically rewritten with robust legal justification. It contradicts any "holistic approach" to service provision.
- Issue (Balancing Exercise - 13.3.3, 13.3.7, 13.3.8 ): The guidance on balancing the "disadvantage to trans people" against a "legitimate aim" is vague and gives insufficient weight to trans people's safety and dignity. A 'legitimate aim' cannot be proportionate if it foreseeably results in severe harm or breaches PSED/HRA duties towards trans individuals. Higher, evidence-based thresholds are needed.
- Issue (Alternatives - 13.3.10-13.3.12 & RADAR Keys): The provision of gender-neutral alternatives is presented as optional rather than a fundamental requirement when excluding trans people. Example 13.3.12 (repurposing accessible toilets) is problematic for disabled people. Critically, the Code fails to address that many "accessible" toilets are RADAR-key locked, rendering them useless as alternatives for non-disabled trans people and leading to no usable facilities (contrary to 13.5.7). Unlocked, additional gender-neutral single-stall toilets must be advocated.
- Issue ("Legitimate Aim" & "Proportionality" - 13.3.2, 13.3.4): The Code must clarify that a 'legitimate aim' (e.g., "safety of women") cannot be based on transphobic stereotypes. Risk assessments must be evidence-based and specific, not generalisations. Proportionality must robustly consider if less discriminatory means exist.
- Issue (Example 13.3.17 - Jewish Women's Gym): Relying on other providers to meet the needs of excluded groups (like trans women) needs clearer legal justification. The Code must clarify a service provider's primary responsibility for its own exclusionary policies, especially if local alternatives for trans people are non-existent or inadequate.
Change 13.4: New content on policies and exceptions for separate and single-sex services (Paras 13.4.1 - 13.4.8 )- Issue: This section's guidance on "exceptions" and "less intrusive measures" is rendered unclear and unworkable by its reliance on the problematic para 13.3.19 (which says trans inclusion is likely unlawful). How can exceptions be made if inclusion itself is deemed unlawful?
- Issue: Vague terms like "undermining the aim of the service" (13.4.2) need objective criteria, especially concerning trans inclusion.
- Issue: Framing trans people as seeking access to services for the "opposite biological sex" (13.4.4) is misrepresentative and disrespectful.
- Issue: Suggesting "separate services" for trans people (13.4.5) risks unlawful segregation if not genuinely equivalent and non-discriminatory.
- Issue (RADAR Keys): The point about "individual lockable rooms" (13.4.7) failing as an alternative if they are RADAR-key locked is crucial here too – this is not a genuinely accessible "less intrusive measure" for most trans people.
Change 13.5: Updated section on separate or single-sex services in relation to gender reassignment (Paras 13.5.1 - 13.5.12)- Issue (Para 13.5.3): Reiteration of the problematic 13.3.19, creating a chilling effect on trans inclusion.
- Issue (Exclusion under Sch 3 Para 28 - 13.5.4): Needs stringent criteria for "proportionate means of achieving a legitimate aim" when excluding trans people from services for their 'biological sex' due to gender presentation. "Alarm or distress" (13.5.6) of others cannot be based on prejudice.
- Issue (13.5.3): Different standard for excluding trans women as a proportionate means to achieve a legitimate aim, but a mix sex group cannot exclude cis gender men as a proportionate means to achieve a legitimate aim - this is an asymmetrical application of the standard, without justification.
- Issue (Example 13.5.12 - Trans Man in Women's Changing Room): This example is logically flawed and confusing given the Code's own definition of the trans man's 'sex' as female for EA2010 purposes. It needs complete rewriting for clarity on discrimination and proportionality.
- Issue (Alternatives - 13.5.7 & RADAR Keys): The "very unlikely to be proportionate to leave a trans person with no service" point is too weak. Lack of ANY toilet, sleeping & other provision for trans people is a ban on their participation in society and should NEVER be acceptable.
- Issue (GRCs): Fails to clarify the impact of a GRC on these assessments.
Change 13.6: Updated content on communal accommodation (Paras 13.6.1 - 13.6.6)- Issue: Must clarify that "same sex" (13.6.2) means 'biological sex at birth' under the Code, leading to trans exclusion from accommodation aligning with their gender.
- Issue: Vague "managed as fair as possible" (13.6.4) and unclear proportionality for excluding trans people from accommodation for their 'biological sex' due to gender presentation (13.6.6).
- Issue (Risk of "Double Exclusion"): Must address how to prevent trans people being excluded from all communal accommodation options, rendering them homeless.
- Issue (GRCs): Fails to mention GRCs and their relevance.
Other Important Overarching Points You Might Re-emphasise in Q52 if not fully covered elsewhere:- Systemic Exclusion of Trans/Intersex Voices: That the interim guidance (forming the basis of this Code) was developed without adequate prior consultation, and this consultation must genuinely incorporate and act upon feedback from affected communities.
- Failure to Uphold Human Rights Act Principles: The Code, in many areas, seems to inadequately guide service providers on meeting their HRA obligations (Art 3, 8, 14) alongside the EA2010, especially regarding dignity and safety.
- Cumulative Impact: The combined effect of all these changes creates a hostile and unworkable environment for trans and intersex people, significantly rolling back perceived rights and protections.
- Need for Positive Guidance on Inclusion: The Code is overwhelmingly focused on justifying exclusion. It needs far more positive, practical guidance on how to include trans and intersex people safely and respectfully.
HOW TO RESPOND (Make it easy!):- TAKE these key issues. (Copy them!)
- USE AI to help you. Ask an AI (like ChatGPT, Gemini, Claude etc.) to:
- "Rephrase these points in my own words."
- "Expand on why [a specific point] is concerning for trans/intersex people's safety and rights."
- "Help me add my personal perspective on this issue."
- EDIT & PERSONALIZE: Crucially, make the AI's output your own. Add your voice, your specific concerns, and ensure it reflects what you want to say. Unique responses are powerful!
- SUBMIT to the EHRC Consultation here: https://shorturl.at/YbGiK (Deadline: 30th June 2025)
Once again, you can respond to the consultation here: https://shorturl.at/YbGiK
Let's ensure our voices are too loud to ignore. This Code will impact lives for years.
If anyone uses this list I would really appreciate it if you could let me know, so I can use my time most effectively in fighting this.