My consultation response to the Equality & Human Rights Commission
Like 50,000+ other people, I took time in June 2025 to make comments on the EHRC’s very bad consultation about its proposed new Code of Practice in light of the (IMO very wrong) judgment by the Supreme Court in fdavour of For Women Scotland about who counts as a woman in relation to the Equality Act 2010 — a judgment with far reaching negative consequences for the lives of trans people in the UK should it be ‘implemented’ by ‘service providers’ as per the proposed Code of Practice.
Because I do not trust the EHRC to take my and many others’ comments on board properly, or indeed even read them, I am just putting them out there for the public record.
Most comments below refer to paragraphs in the consultation document, so will lose some sense, but I hope the main thrust of arguments will be there.
A lot of responses draw, with various degress of copy and paste, on others with more expertise, especially Dr Sandra Duffy, though I have also ‘ad-libbed’ in places based on my own not-too-terrible understanding of the law and, erm, actually having a bit of common sense about how unworkable and damaging this Code of Practice will be if it becomes applicable for argument in court under section 14 & 15 of the Equalities Act 2006. (though note it is not definitive in law, contrary to what commentator Ian Dunt has argued).
My main fresh arguments are that
a) The EHRC may itself have committed an offence of harrassment under s.26 of the Equalities Act 2010 by issuing this appalling and disturing set of proposals;
b) Stress that the EHRC is putting service organisation in legal jeapordy by issuing as Code that is so badly thought through in terms of both harm and practical implementation
c) A specfic focus on ‘competition’ in sport, in reference particularly to the mass participation and public health movement ‘parkrun, with which I have been deeply involved for more than a decade, and which I know will be on the frontline of legal test cases from high-profile, well funded ‘TERFs’ if this Code of Practice gets through parliamentary scrutiny unscathed.
What follows is the main text of my responses to the key question put by EHRC as to whether the proposed new Code content has ‘clarity’ (note, as opposed to whether it’s right or wrong).
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Gender Recognition Certificates
a) 2.1.8 presumably seeks to reassure that trans people will be protected from discrimination because of gender reassignment, yet it is not clear who the EHRC regards as a ‘legitimate’ trans person in the first place, and obscures this whole issue by saying that 2.1.3 is not open to feedback, even though that is where the problem lies. This is because the last sentence in 2.1.3 provides a ‘get out’ for those who wish to use the Code in a manner designed to harm trans people, by allowing for the strange notion that there may be people who identify as trans but who are not really trans, notwithstanding the wording at 2.1.1, which does seek to provide holistic ‘cover’ for trans people in terms stage and type of reassignment. EHRC therefore needs to review the relationship bwtween 2.1.1., 2.1.3 and 2.1.8 to ensure that trans people, of whatever type, do not become victims simply because of later malevolent interpretation of what constitutes being trans.
b) ‘Biological sex’ is a nonsense term. What does EHRC mean by ‘biological’? Hormonal? Chromosonal? This is well-established territory, but overlooked as an issue by EHRC. Get rid of the term.
‘Birth Sex’
a) The Code of Practice needs to clear that there are pretty well no circumstances in which asking a trans person about the sex they used to be will not run the risk of i) contravening Article 8 of European Convention on Human Rights; ii) breaching section 26 of the Equality Act 2010 by “engag[ing] in unwanted conduct related to a relevant protected characteristic, [where] the….the conduct has the purpose or effect of (i)violating [a trans person’s] dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for [the trans person].”
Creating a code of conduct for actions which are very likely to breach the law is irresponsible of the ECHR, as it puts service providers at risk by making them think they can engage in this kind of activity with impunity. Further, even setting out this consultation, in which the notion of regular questioning of trans people about the sex they used to be may be considered a breach of section 26 of the Equality Act 2010 by the EHRC itself.
Asking for information about birth sex is likely to be unnecessary and disproportionate in many cases, leading to possible Article 8 ECHR breaches. There is no way to know when it is a proportionate response. This leaves legal jeopardy for service providers and is unworkable.
Notwithstanding therefore that the EHRC may already have breached the Equality Act, this whole section should be removed. It is not the fault of the EHRC that the Supreme Court has made a judgment which clashes with other aspects of valid international and domestic law, but nor is it the role of EHRC to try to cover for the judgment by effectively encouraging unlawful invasion of privacy and harassment.
b) Specifically, the notion set out at 2.2.8 of “a genuine concern” is absurd, in particular. It is clearly subjective, and allowing it as a rationale for further invasion of privacy beyond unwanted questions would be a gross error by EHRC.
Defining sex at birth
It is understood that the EHRC may feel bound to acknowledge the Supreme Court ruling about legal sex being that recorded at birth, but there is no associated need for EHRC to use the term ‘biological’ sex’ (2.3.2) in defence of the Supreme Court. There is no legal definition of the term, and for the EHRC to use it as some kind of rationale suggests bias on the part of the EHRC towards some kind of made up definition.
2.3.2 should be removed.
Sexual orientation
a) Given that EHRC recognizes (2.4.2) that sexual orientation is a matter of how people “feel”, it is illogical to seek to make distinctions about types/forms of sexual orientation, rather than simply say that anyone who expresses their identity as other than ‘straight’/’cis’ has a protected characteristic, not least as this would equate to the “comparator” method used by EHRC at 2.3.4 for the purposes of sex discrimination.
Making this all very much simpler in this way, via a standardization with the ‘method’ at 2.3.4 will also close the loophole, whereby protection under the Equality Act for trans people in same-gender relationships is threatened. It should also be made clear in the Code that this protection does not interfere with the protected characteristic of gender reassignment.
Examples of sex discrimination by perception
a) The example given at 4.1.3 is objectionable, because of the strong implication that only trans women who ‘pass’ have sex discrimination protections, while others cannot; essentially, the tale told is of a chairperson who takes the trans woman in question for a cis woman, and discriminates against her on that basis, but that by implication this would not happen for a trans woman who does not ‘pass’
b) Holding that a trans woman is not a woman is a potential breach of Article 8 ECHR that could lead to legal jeopardy for service providers. This is not clear in the example.
The whole example should be removed.
Caselaw
It is not clear what case law is being referred to, so this section is impossible for the lay reader to comment on.
At 4.2.2, a reference is made to ‘biological sex’. As I have set out above, this whole idea is contested, and the term should not be used.
Example of sex discrimination — same disadvantage
The example at 5.1.3 essentially shows up how absurd the whole idea of treating a trans woman as a man is; if the trans woman in question in the example experiences disadvantage “because she presents as a woman”, then it is illogical not to treat her as a woman for the purposes of the Equality Act 2010.
This absurdity is best highlighted in the Code, rather than glossed over in this way, such that service providers are empowered to take more sensible approaches to provision overall.
Harassment related to sex
The example at 8.1.6b, as at 5.1.3, essentially shows up how absurd the whole idea of treating a trans woman as a man is; if the trans woman in question in the example experiences disadvantage “because she presents as a woman”, then it is illogical not to treat her as a woman for the purposes of the Equality Act 2010.
This absurdity is best highlighted in the Code, rather than glossed over in this way.
Example on women only associations
The example given is not clear and accurate because it is unclear how the women-only association would or could know the woman is trans.
b) Finding that information is not likely to be reasonable or proportionate for the purposes of most associations, and could amount to a breach of Article 8 ECHR, as well as constituting an act of harassement under section 26 of the Equality Act 2010. Thus, EHRC providing this as an example of acceptable practice is tantamount to exposing associations to legal trouble.
See also my response on section 2.2. (asking about birth sex).
b) Equally, this could potentially exclude cis women who are ‘thought to’ be trans by women-only associations because they are cis but “gender non-conforming” in the context of stereotypes of what a woman should look and sound like..
Issues regarding competitive sport
a)The definition of a ‘gender-affected activity’ is open to great contest in the context of transgender people, and there should not be a simplistic cross-read from section 195 of the Equality Act 2010. .There is no marker of “physical strength, stamina, or physique” which would intake all trans women or all trans men, nor one which would differentiate every member of those categories from cis people of the same gender. Many trans people change the physical markers of their sex such as hormone levels to such an extent that they are indistinguishable from those of a comparable cis person. There is therefore no reason to assume, generally that allowing a trans person to enter a sporting competition would compromise “safety or fair competition”.
b) The example in 13.1.17 is very unclear. After the Scottish Ministers decisions, such an event would be counted as mixed-sex and therefore no cause for complaint for the cisgender woman in question would exist, though note that I, personally consider, this decision to be in error of fact and law and therefore that they do not hold the viewpoint that the event SHOULD be considered mixed-sex.
c) There is no legal definition of “the physiological differences between men and women” (13.1.18) and such a phrase would also not hold scientific merit. It should be discarded from the Code.
d) 13.1.18 is very unclear in terms of what constitutes “competition”, and thus allows to be dragged into contention -and thus the EHRC advice that policies should be drawn up — many activities which are not competitive sport, and therefore are in no way subject to the Supreme Court’s decision and any subsequent EHRC Code of Practice.
For example, the popular weekend activity ‘parkrun’, could be dragged into protracted proceedings by malevolent actors about the appropriateness of its “general policies”, because it might be claimed to have an element of competition, even though none of the elements that are core to competition (prizes, medals etc.) are at all present.
To avoid this, and thus to avoid harm to a physical and social movement that delivers great benefits, the EHRC should i) remove the first, ambivalent bullet point at 13.1.18 and replace it with a clearer statement that activities undertaken for social recreational and well-being purpose, are NOT to be interpreted as competitive for the purposes of section 195 of the Equality Act.
Justification for separate and single-sex services
a)It is not reasonable for the EHRC to say that a service which is open to cis women and trans women “could… lead to unlawful harassment against women who use the service” on a basis which is any greater of a risk than opening the service solely to cis women.
Trans women have no greater likelihood of committing harassment against cis women than cis women themselves, and are frequently themselves the victims of harassment. The insinuation that trans people are somehow ‘a danger’ to others because they are trans should be removed.
b) Similarly, the insinuation at 13.3.4 that “women’s safety, privacy and/or dignity might be at risk” in a service shared in which trans women are welcomed should be removed.
c) More generally, the EHRC should find space in the Code to set out that rare acts which impinge upon women’s safety and privacy will generally be tackled best not by appying its Code of Conduct, but under other statute e.g. section 67 of the Sexual Offences Act 2003 (Voyeurism). This will also provide clarity against insinuation that trans people are in some way more predatory than cis people, and will remove the need for other insinuating comments about ‘peeping Toms’ etc., as in the reference to “floor to ceiling lockable doors” in the example at 13.3.15.
New content on policies and exceptions for separate and single-sex services
a) The example given in 13.4.3 is unclear as it implies that young boys are unlikely to pose a threat to women’s safety therefore they can be included, whereas the implied opposite is that trans women will pose a threat to cis women’s safety therefore they cannot. As set out above, in any rare instance of women’s safety being compromised, there is other legal statute available for that to be confronted and punished as necessary, and it is not the job of the EHRC to make assumption about trans people being in some way more predatory than cis people.
Updated section on separate or single-sex services in relation to gender reassignment
a) Paragraphs 13.5.3–5 leave trans people in a position where they are unable to use the bathroom for their ‘acquired’ sex, or for their birth sex if the service provider believes that that is a proportionate means of achieving a legitimate aim. This would have to be tested in court as to its validity; meanwhile, the trans people would go on having no facilities in the meantime.
b) In 13.5.11 it is implied that a trans woman would not need to attend a gynaecological service. Trans women who have undergone gender affirmation surgery may need to see a gynaecologist or a urologist. The example is therefore simply wrong.
c) The example given in 13.4.3 is logically inconsistent in that it states that the inclusion of a male child does not render the space mixed-sex, but the inclusion of a single trans woman would.
d) 13.4.8 does not offer any solution as to what the service provider should do in that case and it is therefore incoherent and, worse, potentially harmful/
Final Comments on the consultation process
The consultation on this Code of Practice has been rushed through with unseemly haste. It should have been a consultation of twelve weeks in line with normal procedure, which would have allowed more considered organizational inputs. The rushed nature of it all is apparent in many places in the content, with ill-thought out examples and, in particular, insinuations about trans people which do not become the EHRC, who are supposed to be guardians of the protections offered by the law to people with protected characteristics.
Overall, both process and content feel designed to stir up some kind of moral panic, with the pretence that something needs to be done quickly so that women’s safety can be defended, even though the Supreme Court judgment has its roots in a 2017 case concerning the membership of public bodies.
As such, it is my initial view as a layperson — and I will examine the issue more closely — that the EHRC may have itself breached 26 of the Equality Act 2010 through the issuing of this draft Code and the allied interim guidance, by “creating an intimidating, hostile, degrading, humiliating or offensive environment” for people with a protected characteristic. The best thing the EHRC can do now is to step back from this draft Code, and reflect again on its proper role in the protection of equality and human rights.
