Note: The new EHRC guidance only applies in England, Scotland and Wales. It does not apply in Northern Ireland, or any other British territories or Crown Dependencies.
Last month, the UK’s Equality and Human Rights Commission (EHRC) handed down new guidance interpreting the Supreme Court’s 2025 decision that for the purposes of the Equality Act 2010, the words “woman”, “man” and “sex” refer to an individual’s sex as assigned at birth.
The court decision caused legal chaos and massive inconsistencies with the law which gives trans people the right to be treated as their own gender. This new code doesn’t change the law, but must be considered by most legal entities. It is set to pass unless challenged by Parliament by the 30th of June.
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What does the new code say?
This new code ostensibly seeks to resolve the Supreme Court’s mess, guiding service providers (local authorities, associations, businesses, etc.) in their legal duties. In reality, it legalizes the exclusion of all trans people from gendered spaces, from bathrooms, to sports, and everything in between.
While trans people are supposed to use the spaces allocated to their sex assigned at birth, those who pass or have certain hormone levels should also not be permitted in their ‘correct’ spaces either. They openly concede that these contradictions are discriminatory, saying:
“Trans people are likely to be disadvantaged by this [guidance], by comparison to people who are not trans.” (13.119)
It goes on to state that individual or mixed-sex services should be provided rather than excluding trans people entirely (13.149), but that’s not an adequate (or realistic) alternative.
The Good Law Project’s Trans Rights Lead Jess O’Thompson said the guidance “still treats trans people as a third sex, suggesting they should be made to use separate spaces – entirely ignoring the harm this causes, and human rights law.”
The worst of it
As usual, this will have the worst effects on the most vulnerable of us. Trans people accessing emergency housing, shelter from abuse, or other support largely arranged in “single-sex” services will likely be excluded on account of their transness.
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This will be worse for such services (emergency shelter, domestic violence centers, etc) because the code guides service providers to “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.” (13.147) This encourages services supporting sensitive needs to exclude trans people entirely.
Contradictions, and how to work through them
Despite this impact, it’s crucial to remember that in day-to-day life, this guidance cannot be enforced as intended. Because this law is directed at service providers rather than users, a trans person using the right bathroom cannot be penalised for entering the ‘wrong’ bathroom. Only the service provider runs the risk of civil lawsuits being brought against them, not the trans person in question.
The guidance admits that policing toilets and similar spaces is unfeasible, and that asking someone their sex in public is grounds for a claim of discrimination or harassment (13.156).
Further, though this guidance fundamentally makes a Gender Recognition Certificate useless for accessing sex-segregated services, under the Gender Recognition Act of 2004, a person’s application for or possession of a GRC is “protected information”, making it a criminal offence to share knowledge of another’s GRC with someone else (with exceptions).
Effectively, if someone asks you if you have a GRC in a bathroom, and goes on to share that information with colleagues– they would be risking prosecution and significant fines.
Nevertheless, the law leaves most of the discretion up to service providers on whether to allow someone they suspect is trans to use gendered services, giving exclusionary groups or those in more ‘sensitive’ sectors reasons to discriminate.
But the contradictions inherent in this interpretation of the law are its weakness, and one that trans people can take advantage of.
Crucially, discrimination or harassment on the grounds of gender reassignment is still unlawful under the Equality Act. This means that if a service provider interrogates a trans person about their gender, or calls them by the wrong pronouns, they are entitled to bring the same claims against the service provider that are threatened by this new code. It’s this incongruity that makes concrete application near-impossible.
Take what’s yours, and fight for your siblings
In sum, it’s a mixed bag. The letter of the law is very bad. It will have the worst impacts on those who are already suffering most, and will exclude vulnerable trans people from the support they need.
However, assuming the letter of the guidance is followed, it cannot and will not meaningfully bar trans people from public life. While the guidance is structured to discriminate and exclude, knowing the way it works means knowing what it doesn’t do, which is a lot.
As written, it cannot bar you from bathrooms, changing rooms, or any service that you can enter freely, or any group that welcomes trans people. It is a license to discriminate, not a mandate.
What will likely happen is friction when you as a trans person attempt to access spaces covered by the new code. Because of the guidance, service providers may feel empowered or pressured to discriminate.
However, enforcement relies on the threat of someone bringing a long and complex claim against a service, a claim that few are likely to pursue. At the same time, a service trying to enforce the guidance risks whoever they suspect to be trans bringing the same legal action.
The guidance gives services and legal entities license to discriminate, but few ways to pursue such discrimination. Take advantage of the gaps.
Gabriel is a freelance journalist based in Manchester, UK. Her work covers fake news, investigations and legal issues.
This story was made possible in part by generous support from Emma Matthies of the Trans Resilience Project. Emma is one of our paid members, and you can join her in supporting The Needle's coverage by becoming a paid member today!