An exclusionary interpretation of UK law has been placed before Parliament.

By Jane Migliara Brigham and Artemis T. Douglas

Today, May 21, the United Kingdom’s Equalities and Human Rights Commission (EHRC) released its draft guidance on how to treat trans people in public. The document places so many restrictions on trans people that existing in public and in compliance with the interpretation of human rights law in the UK would become practically impossible– if you are trans.

While being trans is still a protected characteristic in UK law, if this code of practice goes into effect, that protection will be utterly irrelevant across public and private life in the UK. 

This guidance bars trans people from being in any single-sex space associated with their gender and/or acquired sex, and forces the owners of those spaces to enforce this discrimination under threat of lawsuit.

The existence of trans people in single sex spaces not associated with their sex at birth is now grounds for lawsuits by cis people against the owners of the space, on the basis that the trans person’s presence is somehow discriminatory to cis people on the basis of the cis person’s sex-based rights.

When claiming discrimination against their sex-based rights, cis people are allowed to use their own discomfort around the presence of trans people as a basis for harm inflicted, and they can file civil lawsuits on this basis.

If the UK Parliament does not vote to reject this guidance, it can be made legally binding as soon as June 30.

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1 Path to Enactment

According to the EHRC’s press release on the matter, this draft has been placed before Parliament, which now has 40 days to consider the guidance. If the UK Parliament doesn’t reject this draft code in that time window, it can be forced into effect by an order from the UK’s Lord Privy Seal.

This means that the UK’s Baroness Smith of Basildon will have the power on June 30 to make this code go into effect, unless Parliament acts to reject it.

“The Equality Act 2006 set out how before issuing a Code, the EHRC must submit a draft to the Secretary of State for approval and the approved draft must be laid before Parliament for 40 days. If neither House of Parliament passes a resolution to reject the Code within that period, the Secretary of State can make an order to bring it into force. ”

While the EHRC is an advisory body that does not write the law, its interpretations of UK law hold significant weight in UK society. 

The recommendations may be considered to be a violation of the UK’s Gender Recognition Act 2004, as well as the UK’s active obligations to the European Court of Human Rights, which still exist, even post-Brexit. However, to prove this would likely require further litigation. 

According to a research brief issued by the UK Parliament’s House of Commons in Dec. of 2025:

“By signing up to the Convention the UK has accepted treaty obligations in international law to secure these rights for everyone in its jurisdiction, and to abide by final judgments of the European Court of Human Rights.”

Since the proposal must be placed before Parliament for 40 days before being enacted, that would give them until June 30 to reject it or allow it to be enacted.

Allowing this code to go into effect requires no action by Parliament.

Seeing as the current British government is currently in a leadership struggle, it is unlikely they will find the will to reject this in time.

2 Defining Biological Sex

Core to this guidance is its definition of ‘biological sex’. As they define the term, it only applies to a person’s sex at birth, and never to the sex that someone transitions into. 

Section 2.50 states that “in relation to [The Equality Act], a person’s sex remains their biological sex, whether they have a [gender recognition certificate] or not. For example, a trans man with a GRC is a woman and a trans woman with a GRC is a man, for the purposes of the Act.”

The Equality Act is the UK’s central legislation for governing how to handle discrimination against queer people, racial and ethnic minorities, disabled people, and others. Separate legislation, the Gender Recognition Act, governs how trans people can obtain gender recognition certificates, the document that states that they have socially transitioned and are living as a different sex.

The claim made in For Women V. Scotland, the court case which this guidance seeks to interpret, is that the definition of biological sex as used in this act only refers to the sex a person was assigned at birth, irrespective of what a person has transitioned into. 

As a result, all anti-discrimination language against trans people on the basis of their sex now only applies to the sex they were assigned at birth, and not what they are living as today.

For example, a trans woman would be considered to have been illegally discriminated against only if she received treatment that would be discriminatory against men. The inverse is also true. A trans man would be considered to have been illegally discriminated against only if he received treatment that would be discriminatory against women.

This makes it so that as far as the law is concerned, trans people are always and exclusively the sex they were assigned at birth.

Put another way, this code of practice interprets UK law in a way that makes trans people– and transition itself– legally nonexistent.

3 Discrimination

This will result in widespread de facto discrimination against trans people. The number of legal justifications which can be used to alter or refuse services to trans people are vast, and the methods available to trans people looking to contest this treatment are slim.

If trans people are legally nonexistent, but rather are noncompliant people of their sex at birth, then from a legal perspective, all attempts by them to access single-sex spaces have no basis which the legal system has to respect.

No Way to Prove a Person’s Sex at Birth

The enforcement of this principle quickly runs into a problem: In the United Kingdom, there is no document that comprehensively proves that its bearer was assigned a particular sex at birth. Birth certificates can be amended, as can passports, driver’s licenses, and other forms of identification.

Since demanding medical proof of a person’s sex is legally discriminatory, the questioner is forced to ask the suspect whether they are trans.

This has a major flaw: Every trans person has a massive incentive to lie in such a situation. This means that asking such a question will not yield accurate results.

In such cases, questioners are encouraged to guess whether a person is trans, and to treat them accordingly.

That becomes a problem when trying to enforce rules around single sex spaces.

The guidance states that facilities have an obligation to enforce such rules. However, since there is no reliable way to determine this, there will be situations where the enforcer will either have to ask for a person’s sex at birth or make a guess as to whether a person is trans.

The advice offered for asking if a person is trans begs more questions than it answers. Section 13.165 states that:

“Discrimination or harassment could occur if, for example, individuals are asked about their sex in a way that requires them to disclose this information in public, or if the language or manner of a request is rude, combative or offensive. Any request that is necessary should take this into account and be made sensitively and discreetly.”

How exactly is a (presumed) cis person supposed to ask if a stranger is trans and have that not be rude or offensive? There is no polite way for cis people to ask such a question.

Then there is the question of how the questioner is supposed to ask the suspected trans person in private. The guidance is unclear on this, but section 13.164 says “It may be helpful to seek specific legal advice in relation to making any such request.”

However, 13.176 says that “if, in all the circumstances, it is legitimate to ask an individual to confirm their sex, and that is done in a manner which is proportionate, it is unlikely to involve unlawful discrimination and harassment.” Addressing potential discrimination claims, 13.177 says that “even though the approach may place trans people at a particular disadvantage, it is likely to be justified.”

This advice is vague and contradictory. There is no way to know for sure how this will play out in practice, and the resulting lawsuits will likely make the ambiguity even worse.

If a person admits “that they are not of the sex for which the single or separate-sex service or association in question is intended, they may be required to leave and thereafter be excluded from the service.” (13.178)

The true danger to trans people comes from what happens when their sex at birth cannot be determined by the questioner. The document admits that sometimes the questioner will not be able to determine someone’s sex at birth. “In such circumstances, it is likely to be necessary to weigh up the relevant factors to decide whether to exclude the individual from the service or association or to permit them to continue to access it.” (13.179)

In simple terms, the questioner reserves the right to determine if a stranger is trans, and remove them from single-sex spaces that do not align with their assumed sex at birth.

In practice, this is a right to discriminate against a person for being trans.

In the words of a representative of Bash Back, “This is overt discrimination that attempts to hide its tracks.”

Gender Recognition Certificates are Now Meaningless

Before the For Women ruling last year, trans people could use Gender Recognition Certificates to avoid being caught in these exact situations. Today, since all definitions of sex rely on a person’s sex at birth, the GRC is legally irrelevant to such matters.

This code states that “a person’s sex remains their biological sex, whether they have a GRC or not.” The consequences of these policies mean that Gender Recognition Certificates, which had previously been used to protect trans people from exactly the kind of discrimination that this document encourages, are now functionally meaningless. 

If the relevant anti-discrimination protections only apply on the basis of sex at birth, and getting a gender recognition certificate provides no legal benefits, why should trans people bother to get them? 

These documents, which have historically protected trans people, are now meaningless scraps of paper.

The Comfort of Strangers

The guidance provides wide leeway for removing trans people (real or suspected) from single-sex spaces across the UK.

“An example of a legitimate aim… for providing a separate or single-sex service could be ensuring the safety of women or the privacy and dignity of women and / or men.” (13.114) Given that anti-trans rhetoric in the UK has said for years that trans women threaten the safety of cis women by their very presence, this rhetoric could be used as a justification for discrimination.

The definition of what could be classified as a single sex space is also based on what would provide emotional comfort to cis people. One example makes this principle clear: (13.125)

“A local gym organises weightlifting induction classes designed to teach users of the gym proper techniques and safety measures. The classes are in high demand and are well attended. A small number of women request women-only classes, as they feel uncomfortable in the mixed-sex service. The gym amends its schedule to offer one class a fortnight to cater to this request, which it considers to be proportionate to the needs of service users and the relative demand. This is likely to be lawful because it has balanced the needs of different service users and provided a proportionate mix of services.”

In short, any claim to feel uncomfortable in mixed sex spaces, no matter how subjective, can be used as grounds to establish a space which trans people cannot access. And for single sex spaces, trans people are not only barred from the correct space– that of the sex which they have transitioned to, but can be forced to leave the incorrect space based again on whether cis people object.

The enforcement sections of the draft code lay out that this does not carry criminal enforcement. All enforcement interpretations are based on the statutory limits to civil courts.

However, this code does say civil damages can include “compensation for injured feelings”. (14.47)

Bathrooms

This principle applies to public and private bathrooms. As written, all single sex bathrooms in the UK would be the exclusive domain of a single sex as assigned at birth. That is to say that nearly all bathrooms are spaces where trans people must either be in violation of the guidance in order to use, or forcibly out themselves as trans, just to fulfill their basic bodily functions.

If one has to ration their use of the toilet when out in public, then one cannot exist in public for very long. Bathroom access is a fundamental part of public life, and it is not possible to be a full member of society without regular access to it.

This is the most important mechanism by which this guidance removes trans people from public life.

Housing 

This restriction also applies to housing. Any single sex housing is restricted to a person’s sex at birth, meaning trans people must out themselves to gain access to them.

Even if they out themselves, they would be forced to use the wrong space. Under a compliant implementation of this draft code, the law would be interpreted to force (some) women into men’s spaces and (some) men into women’s spaces. 

Disproportionate Impact on Trans People

While anti-trans prejudice is never cited as explicit justification for this code, the text acknowledges that the result of its implementation will be that “Trans people are likely to be disadvantaged by this, by comparison to people who are not trans.” (13.119)

This shows that the drafters are fully aware that there is no way to implement this without disproportionately harming the wellbeing of trans people. This undercuts their claims to not be interfering with the rights of trans people.

This code would be nearly impossible to enforce as written, since it demands people (cis and trans alike) to act on obligations that actively contradict one another.

Since there is no document issued by the UK government that reliably determines if a person is a particular sex at birth, there is always the chance that enforcement might come down to an assumption on whether a person is trans. This means that appearance and other secondary sex characteristics would determine how policy is enforced.

If this means that a cis person is excluded from their sex at birth, that cis person has grounds to go after the establishment for sex discrimination. However, if that cis person is let in, and another cis person is made uncomfortable by the presence of someone they presume does not belong there, they claim their sex-based rights are being violated. 

These interests are mutually contradictory. As laid out in the code, the sex based rights of one person cannot be protected without infringing on the same sex-based rights held by another party. Full enforcement of the code is not possible.

At the same time, there is a document that the UK government has been issuing for over 20 years that proves that its bearer is not presenting as their sex assigned at birth: the Gender Recognition Certificate. However, forcing someone to prove that they have a GRC carries criminal penalties. Therefore, it cannot be requested as proof of a person’s sex at birth.

As long as the UK does not have a system to reliably tell who was assigned a particular sex at birth, and allow that to be presented at all functions where such information is needed, then the full enforcement of this code will be impossible. 

However, if such a system were devised, it would far more efficiently lead to discrimination against (and exclusion of) trans people. Therefore, such a system should never be allowed to come into being.

5 Do Not Comply

In addressing how to respond to this, a representative of the direct action group Bash Back urged open defiance.

“If you are a trans woman, use women’s spaces. If you are a trans man, use men’s spaces. Occupy space. Do everything you can to be your own person and resist this.” they said.

For those with the means, they encourage more drastic action.

“We encourage people to take direct action against the people harming us. It’s now or never. We have to fight to live, so we have to live to fight.”