The EHRC Code of Practice and Constituents

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Looking at the EHRC Code of Practice for services, public functions and associations: What it is and How it Affects your Constituents

On August 5th the Equality and Human Rights Commission (EHRC) published new guidance about the implementation of the Equality Act 2010. The Code of Practice for services, public functions and associations, 2026 follows a court ruling that defines a person’s sex as their ‘biological sex’ – which means the sex a person was given at birth. This means that a trans-man would be protected under the equality act as a female, regardless of how he identifies, is physically perceived, or if he had a Gender Recognition Certificate; under the Equality Act, he is a female. Equally, a trans-woman would be considered a man under this interpretation of the Act.

This has left many trans, intersex and gender non-conforming people feeling deeply worried and uncertain, especially in regards to what facilities they are able to use or services they may access. This briefing aims to accurately identify the ways in which the new guidance affects trans people, and offer a way that MPs may respond to this guidance, whilst respecting trans people fully.

Background

The Equality Act 2010 sets out nine characteristics, which are protected against discrimination, harassment and victimisation. Discrimination against people with these characteristics is unlawful under the act, this includes in:

  • employment and other areas of work
  • education
  • housing
  • the provision of services
  • the exercise of public functions
  • membership of associations

The three protected characteristics relevant to this briefing are ‘sex’, ‘gender reassignment’ and ‘disability’. As highlighted above, ‘sex’ within the Act, is now taken only to refer to a person’s assigned sex at birth. ‘Gender reassignment’ includes people at any stage of their gender reassignment – this means that a person is protected regardless of whether they have obtained a Gender Recognition Certificate, or have had gender reassignment surgery. A person need only have started a process of transition to be protected under the Act.

It is important to note that EHRC guidance does not have direct, strict “force of law” in the sense that failure to follow it is an automatic crime or but it as current statutory guidance approved by Parliament and so courts and employment tribunals will take relevant provisions into account when determining whether the Equality Act was breached if a case is brought.  It is also important to note that rights under the Equality Act need to be balanced with other rights by the courts.

Responses to the new guidance

Where some organisations are happy about the perceived protections of single-space spaces under the new guidance, many trans, intersex and gender non-conforming people have been left worried and scared about how it may affect their lives. These worries are likely to be shared with you as their MP.

Additionally, businesses and services may also be confused about how this guidance affects them – balancing the rights of people protected under the code is likely to become increasingly complex. For example, a trans-man wishing to use the male bathroom, may not feel comfortable using the female bathroom if he has visually transitioned. However, he would potentially break the code by using the male bathroom – as he may be perceived as harassing the men in a single sex space. However,  women within the female bathroom may be confused and angry as to why a perceived male has entered their space.

Under the guidance, the trans-man would be protected under the act as ‘female’ to use the female bathroom – but may be scared of the harassment he may receive from women as a perceived male (which could be considered harassment based on gender reassignment under the act). He may instead decide to use the disabled bathroom (as these are usually gender neutral) however, this may infringe on the rights of disabled people, who are also protected under the Act.

How then does a business respond to this scenario without infringing on the rights of the trans-man, the men and women in the two bathrooms or disabled people? This is currently unclear in the guidance, but these may be questions that your constituents ask you for clarity on.

Protecting Everybody’s Rights

It is hard working within the guidance to ensure the rights of all people protected under the Act without excluding trans people from public life completely. This is why many trans people find this guidance so damaging – as they are, in many ways, being perceived as a problem. Excluding a minority group is something that the Equalities Act is designed to protect against.

If you have a trans constituent contact you, who is worried about their status under the law, here are some aspects of the guidance which are important for trans, intersex and gender non-conforming people to understand:

  • Firstly, there is no requirement for policing access to many everyday spaces – nobody should be asked to provide documents before using toilets and the like, but the guidance does suggest duty bearers should sometimes exclude people based on their appearance.
  • Secondly, gendered clubs and associations, such as the girl scouts, can operate on a combination of protected characteristics such as both sex and gender reassignment – so could be open to ‘women and all trans people’ for example. For services, the EHRC code states this is not possible without being fully mixed sex – the law here is unclear and likely to be subject to legal challenges.
  • Thirdly, both non-binary people and trans-children are recognised under the Act.

Understanding these means that MPs can provide information to trans people, intersex people and gender non-confirming people to ensure they feel safe to continue accessing public spaces.

Pushing for clarity on the act and understanding what it currently means for your constituents is vital to supporting everybody’s rights. Everyone should have the right to live freely, without fear of discrimination; this is one of the reasons the Equalities Act exists. By providing accurate information for businesses, groups and individuals, you as an MP can help ensure this.

Further reading:

The EHRC Guidance: https://www.equalityhumanrights.com/guidance

Disability Rights UK’s Statement on the Guidance: https://www.disabilityrightsuk.org/news/disability-rights-uk%E2%80%99s-statement-new-ehrc-guidance

Gendered Intelligence’s response to the Code of Practice: https://genderedintelligence.co.uk/news/33-updated-ehrc-code-of-practice-gis-response

TransActual offers support to trans people and information on a wide range of issues: https://transactual.org.uk/