After the Supreme Court ruled that the word sex means biological sex in the Equality Act 2010, the equality watchdog for the UK, or EHRC, released updated guidelines reflecting the ruling about two weeks later. This was a very short timeline for the new guidance, so the Women’s and Equality Minister, Bridget Phillipson, told them to renew the guidelines. This was released to Parliament at the beginning of last month for a 40-day evaluation.
During this time, MP’s can voice their opposition towards it. Labour MP Nadia Whittome lodged a motion in the UK Parliament to disapprove the code of practice. This was called an Early Day Motion, or EDM 240. This EDM got 166 signatures in total, but it did not get enough (326 signatures were needed) to be debated in Parliament.
Unfortunately, the Code of Practice will come into effect on the 5 August.
What does the Guidance say?
It’s hard to give simple summaries of many of the changes the Code makes because, in many places, it is contradictory or confusing, but I have done my best to provide those below.
Sex and Gender Recognition
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]
Furthermore, it states that “in relation to the Equality Act, a person’s sex remains their biological sex regardless of whether they hold a Gender Recognition Certificate.” [2.50]
This means for the Code’s purposes and according to the EHRC and UK Government’s understanding of the Equality Act, transgender people should be treated as their sex assigned at birth. Therefore, a transgender man should be treated as a woman and a transgender woman as a man. The Code equates “biological sex” with “sex at birth” and assumes a binary understanding but provides no clear definition for either.
The next paragraph clarifies that this code only applies to the Equality Act 2010 and not the implications of the For Women Scotland judgement for section 9 of the Gender Recognition Act 2004. While this is welcome, I’ve already seen numerous examples of the definition of “sex” as always meaning “sex at birth” slipping out of the Equality Act context and into other areas of life. I’m worried this updated code will perpetuate this trend and be used as “evidence” that trans people should be treated as our “sex at birth” everywhere, despite its limited application to the Equality Act.
Furthermore, while it’s true a Gender Recognition Certificate (GRC) still impacts other areas like marriage law, this interpretation completely negates a key benefit of legal gender recognition. This has been acknowledged by organisations like ILGA Europe (https://www.ilga-europe.org/files/uploads/2025/05/202505_UK-LGR-points-in-2025-RM.pdf). The Gender Recognition Act 2004 states:
“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 exceptions always existed, it’s clear that treating a transgender person with a Gender Recognition Certificate (GRC) as their “sex at birth” for all service provision public functions and associations means their acquired gender isn’t fully recognised. If the UK Government and EHRC believe this is the law following the Supreme Court judgement, they should be deeply concerned about this as a breach of trans people’s human rights to practical and effective legal gender recognition and privacy. They should take steps to rectify this.
The Code clearly states that transgender people are still protected from certain forms of discrimination due to gender reassignment, as defined by the Equality Act to encompass transgender status. This protection applies regardless of whether they have a Gender Recognition Certificate (GRC). Furthermore, transgender people are also protected from sex discrimination based on both their “sex at birth” and their “perceived sex in their acquired gender”, irrespective of their GRC status. Consequently, it would be unlawful to treat transgender individuals less favourably in the provision of services public functions and associations simply because of their transgender identity, their “sex at birth” or their perceived gender identity.
Perceived sex is determined by the discriminator’s viewpoint, irrespective of its accuracy relative to a person’s actual identity. The Code illustrates this with an example: a transgender woman applying for treasurer of an association is rejected because they believe a man is better suited for the role and doubt a woman’s capabilities. Consequently, the trans woman has a valid claim for direct discrimination simply because of her perceived sex as a woman, just like a biological woman. [4.53]
Throughout the Code, there are other similar examples where transgender people are understood and treated according to their gender identities. This sometimes involves less favourable treatment due to misogyny, but it ultimately insists that this is a mistake in the perpetrator’s perception rather than a reflection of transgender people’s lived realities. The Code constantly grapples with the challenge of implementing the Supreme Court ruling that we should always be treated as our “sex at birth”. However, this practical reality often differs from how we’re treated by others and may not always be lawful, as I discuss further below.
Many who defended the Supreme Court judgement and the updated Code argue that transgender people will still be protected from gender reassignment and perceived sex discrimination. However, I believe this change will actually make it even harder for many transgender people to report or take action against discrimination based on their gender identity. This is because the new protections are only technically covered and require them to disclose sensitive personal information like their transgender status and/or “sex at birth”. Furthermore, this change also affects transgender 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 will only be covered by gender reassignment protections if they meet the definition of gender reassignment as outlined in the Act. This definition 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 provides an example of what this might mean for gender-fluid people [2.45] but doesn’t explain what it would look like for a non-binary person. Some interpretations of the Equality Act suggest that “changing physiological or other attributes of sex” implies only changes from “male to female” or “female to male” are covered because “sex” is used and must now be interpreted as either “male” or “female”. However, the Equality Act definition of gender reassignment uses “sex” and “gender” interchangeably, suggesting it covers changes to various aspects of life that express different aspects of gender identity. For instance, a non-binary person choosing “they/them” pronouns clearly indicates a reassignment of one “other attribute of sex” from one gender understanding to another even if it’s not binary. While the Code doesn’t explicitly explain this, it seems unlikely they’d include non-binary people under gender reassignment if they didn’t believe it was possible.
Finally, the section on discrimination due to pregnancy and maternity clarifies that “the pregnancy and maternity provisions in the Act apply on the basis of sex and therefore trans men are included in the protections against discrimination provided by these provisions.” [4.55]
I understand that trans men and transmasculine people often feel unwelcome in pregnancy-related spaces and services not designed with them in mind. This can lead them to avoid these spaces potentially resulting in worse health outcomes or influencing their decisions about having children. Furthermore, trans men and transmasculine people face pregnancy discrimination specifically because they are men or masculine-presenting individuals who are pregnant. Therefore, basing their protections on their “female” status misunderstands the nature of the discrimination they face and likely discourages them from reporting it.
Maternity discrimination protection only applies to people who have given birth so it wouldn’t cover a breastfeeding transgender woman. However, the Code states that “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 the harassed person doesn’t possess it [8.28]. Therefore, harassment of a breastfeeding transgender woman could well be unlawful sex harassment.
Access to Services
The Code doesn’t provide examples of how services can include trans people within the law. Instead, it focuses on how we can be excluded from services based on our gender identity and sometimes even our “sex at birth”. While it does ask that trans people be considered, it doesn’t offer suitable advice on maintaining our rights and dignity in using services or any lawful way to be included in services provided separately for men and women in line with our gender identity.
The Code states that single-sex services must be based on “sex at birth” to rely on the single-sex exemptions in the Equality Act. It also prohibits providing separate services for men (including cis men and trans men) and women (including cis women and trans women).
“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]
The Code not only allows for the exclusion of transgender people from services that align with their gender identity but also permits exclusion based on their “sex at birth” if it serves as 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 effectively segregates transgender people from services that align with their identities, placing them in so-called “third spaces”. However, the Code acknowledges that transgender people are likely disadvantaged by this lack of access to services that match their gender identity and suggests that service providers should explore less intrusive alternatives:
“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 states that transgender people are protected under gender reassignment and must have access to necessary facilities and services. This 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]
Practical considerations like building infrastructure and other factors can prevent such spaces from existing, effectively leaving us without access to essential services.
Harassment
Trans people are protected from harassment under the Equality Act. The Code states:
“If 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 Equality Act prohibits harassment related to a protected characteristic, sexual harassment and less favourable treatment based on sexual harassment or harassment related to sex or gender reassignment. [8.2]
Regarding harassment “related to a protected characteristic”, transgender people are protected on the grounds of gender reassignment and also on the grounds of sex “by perception”. This means an individual doesn’t need to possess the relevant protected characteristic themselves to be protected from harassment. [8.28] The Code provides 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 clarifies this by acknowledging that the person accused of harassment might be exercising their own rights or simply sharing views beliefs or opinions about transgender people. This doesn’t automatically constitute 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]
Holding anti-trans views doesn’t automatically constitute harassment. However, if those views manifest in a way that violates the Equality Act and amounts to unlawful harassment, that conduct will be illegal. The Code explains that this is quite a high bar to meet:
“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]
Furthermore, in Chapter 4 on direct discrimination, the Code explains that a person shouldn’t face less favourable treatment simply because of a stereotype about a belief they might hold. It provides a specific example related to how those with “gender-critical beliefs” perceive transgender people.
The Code cites examples of stereotypes concerning religion or belief, such as the notion that individuals who express certain gender-critical views necessarily hold negative attitudes towards transgender people or those who believe same-sex sexual activity is sinful necessarily hold negative attitudes towards gay people. [4.100]
I value freedom of belief and religion and believe everyone should have these rights. However, I disagree with the statement that gender-critical beliefs always rely on a binary and immutable understanding of sex. They fundamentally challenge the reality of transgender people – that we can and do change aspects of our sex and deserve to be treated accordingly. Claiming someone’s lived reality is false is hardly neutral; the same goes for the belief that same-sex sexual activity is sinful.
I understand that people shouldn’t face less favourable treatment based on their beliefs and that those with gender-critical or same-sex sexual activity beliefs will have diverse views on how LGBTQIA+ rights are realised.
Associations
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]
The Code also advises that associations can restrict their membership to individuals possessing any one of more than one protected characteristic such as 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 restrict membership to individuals possessing both of two distinct protected characteristics. For instance, 12.76 provides an example of an association limited to Muslim women.
Based on these rules, it’s possible for an association to limit membership to women or trans women (or men and trans men). The Code itself doesn’t offer a specific example but the Equality Impact Assessment for the Code published by the UK Government clarifies this.
“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 woman and trans women association.”
This suggests that the structure and regulation of an association according to its rules enable transgender people to be included in line with their gender identity. I wouldn’t be surprised if this section faced future legal challenges.
Exclusion in Sport
Significant amendments to the Code, stemming from the EHRC’s consultation on the draft version, are likely to exclude transgender people from competing in many sports aligned with their gender identity. The Code currently stipulates 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-affecting sports are those where an average person of one sex would be at a disadvantage against an average person of the other sex due to physical strength stamina or physique [13.65].
However the Code acknowledges that the law and interpretation of this exception are uncertain and unsettled. Specifically there’s uncertainty about what “sex-based arrangements” for participation in so-called “gender-affecting activity” are lawful [13.66].
The Code notes that this exemption doesn’t apply to associations that can still create their own rules for members. This could lead to trans inclusion aligned 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]
I are aware that LEAP Sports are conducting a full analysis of the Code in relation to sport which will be available in due course.
Conclusion
Many transgender people, myself included, think this means we are now being treated as second-class citizens in our own country. A lot of us are scared of going out and using facilities that match our true gender, or playing in sports. TERFs are even going after fun things like the Sunday Park Run to try to get transgender people banned from them, even though they are just fun runs, not competitive at all.
These guidelines require transgender people to use the toilets corresponding to their sex assigned at birth.
This means a transgender woman needing to use a public toilet will have to use the men’s toilets. These women, who often can’t hide their femininity, face danger when using a public toilet because they’ll be forced to use the men’s.
Conversely, transgender men often grow beards, bulk up and behave like men. This can make women in the toilets they’d need to use feel very uncomfortable. It also makes it easier for a predatory man to use the women’s toilets, so putting the women more at risk.
Many transgender people I know now have keys to disabled toilets as they’re the only safe place we can go.
However, this is just not practical for several reasons.
- Disabled toilets are for disabled people. There is usually only one toilet in a venue, and that is always busy.
- It is degrading. It makes transgender people feel like second-class citizens in their own country.
- It forces the transgender person to out themselves. Not all transgender people are publicly out. They might pass as their preferred gender in the looks department, but are still not out as a transgender person in public. This will force them to do so.
Fifteen years ago, the UK was at the top of the European rankings for LGBT+ rights. We’re not currently third from the bottom; only Belarus and Russia are below us.
This is a disgrace; it feels like we are going backwards instead of forwards.
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