These notes are being made by Dr. Sandra Duffy on 20th May 2025.
They are subject to update and change as time goes on and things become clearer.
They also may contain errors which are no-one’s fault but my own and which I am happy to correct.
They are intended to help people with filling in the EHRC consultation on their Code of Practice which began today.
Trans people should be aware that filling in the consultation might be difficult or distressing, as might interacting with the EHRC’s documents. You do not have to put yourself through this if it is too hard. It is better for the community that you are healthy and happy than that there is another response logged.
With an eye to the above, I would strongly urge allies to fill in this consultation instead, because you are less likely to be as personally or emotively affected by it. All answers are anonymous so your positionality won’t affect your answers’ validity.
These notes are not meant to replace a thorough read of the documents, which are here, but they can be used as a guide to it and a helper: https://www.equalityhumanrights.com/equality/equality-act-2010/codes-practice/code-practice-services-public-functions-and-associations
One thing you may note as you go through this is that there are not very many good or personal answers. We need to stick as closely as possible to the framing of ‘accurate/not accurate… but also!’ in order to get the responses read. All the personal responses that we can put in are not likely to be read and counted, because they’re looking for responses with ‘accuracy’ or ‘clarity’ in. So use that framing, and then say your piece.
There is a section at the end for ‘any other feedback’ in which you can put the personal things.
Massive thanks to Hafren from Trans Pride Bristol for reading through these as I wrote and giving constructive feedback on the places where I was unclear myself (ironically…)
Let’s get started.
The survey link is here: https://www.smartsurvey.co.uk/s/EHRC-code-of-practice-consultation-2025/
You’ll need to clarify that you want to give feedback.
It’ll then ask you some questions.
I suggest clicking ‘sex,’ ‘gender reassignment,’ and ‘sexual orientation’ under the list of protected characteristics.
The first question discusses ‘Changes that apply across the Code.’
This means that the proposed change will apply to all instances of the term’s use across the Code of Practice. This is where they have laid out the updated definition of sex. It reads ‘legal sex is the sex that was recorded at your birth.’
It used to include the change of legal sex that comes with a GRC, but doesn’t any more.
The survey asks if you think the update is clear, and if there is ‘anything you would change to make this update clearer.’
I am going to reply: agree it is clear, and no, there is not.
Speaking legally, there is nothing unclear – specifically, inaccurate – about this statement (and we are, regrettably, speaking legally). If you would like to respond differently here, I would suggest:
- It is unclear why the Supreme Court chose to remove the protection on sex discrimination conferred by a GRC from trans people.
- Legal sex as conferred by the GRC leaves the trans person in a state where he or she is one sex for the purposes of equality law, and the other sex for every other purpose. This is unclear.
Just an interjection here – again, the questions are set in terms of accuracy and clarity. That means that we have to be careful in how we respond if we want the responses taken into account.
I can’t say I’m going to enjoy this as we go through, because my instinct is to tell them all the reasons I don’t like what they’re doing, but I am going to work with the assumption that we – the responders – want our responses to reach the Commissioners and not get thrown out by a Commission administrator.
Please feel free to answer any way you like, of course, and know I’m just writing this with that particular goal in mind.
The second question applies to ‘Changes to chapter 2.’
This section concerns Gender Recognition Certificates, sex at birth, and sexual orientation, and is here:
2.1. In this section they want comments on sections 2.1.6 to 2.1.9 only.
These sections are about the effects of Gender Recognition Certificates. They use the term ‘biological sex’ and say it is also referred to as birth sex. They say trans people are protected on the basis of gender reassignment as being trans, and from sex discrimination based on their birth sex.
You will be asked if you think this is clear and how you would change it otherwise.
I am going to reply: strongly disagree, and
- ‘Biological sex’ is a misleading and inaccurate term which does not in all cases correlate to the sex assigned/recorded at birth.
2.2. These sections are about asking someone’s sex at birth.
I am going to reply: strongly disagree, and:
- 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.
- There is no way to ask someone’s birth sex that is not ‘rude… or offensive.’
- ‘Genuine concern’ is a subjective metric and cannot be legally enforced.
- The likelihood is if this section is carried through that trans people’s legal human right to privacy will be breached. I suggest it is not carried through.
2.3. This section asks about the definition of sex.
I am going to reply: strongly disagree, and:
- ‘Biological’ is a term which has no precedential or statutory legal definition in this jurisdiction, cannot be properly or sustainably scientifically defined, and should not have been used by the Supreme Court.
2.4. This section asks about the definition of sexual orientation.
I am going to reply: strongly disagree, and:
- It is not possible to legally define or delimit the boundaries of a person’s sexual orientation.
- This also removes protections for trans people in same-gender relationships and may interfere with the protected characteristic of gender reassignment.
The next question applies to ‘Changes to chapter 4.’
This section concerns sex discrimination by perception, and is here:
4.1 In this section they want feedback only on the example in part 4.1.3.
I am going to suggest you skip this one as it involves validating the misgendering of the trans woman in the example whichever way you answer it. Alternately, you could tell them that:
- 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 example implies that only trans women who ‘pass’ can access indirect sex discrimination protections, while others cannot.
They may not listen to that, but, reader, there’s a long way to go and we need to get our shots in where we can.
4.2. This section concerns discrimination on the basis of pregnancy and maternity.
I am going to reply: strongly disagree, and:
- It is unclear what case law was removed. Surely if the purpose is clarity, that would be referenced?
- Repeat the bits around ‘biological’ from the above answers.
The next question applies to ‘Changes to chapter 5.’
This section concerns sex discrimination where there is a similar disadvantage between people who do not share the same protected characteristic, and is here:
5.1. They only want comments on the example in 5.1.3.
I am going to reply: strongly disagree, and:
- If a trans woman experiences disadvantage ‘because she presents as a woman,’ this renders the whole paradigm of treating her as a man absurd.
The next question applies to ‘Changes to chapter 8.’
This section concerns harassment related to the protected characteristic of sex, and is here:
8.1 They only want comments on the example in 8.1.6b.
I am going to suggest you skip this one as it involves validating the misgendering of the trans woman in the example whichever way you answer it, or,
- If a trans woman experiences disadvantage ‘because she presents as a woman,’ this renders the whole paradigm of treating her as a man absurd.
Shots, my reader. Shots.
The next question applies to ‘Changes to chapter 12.’
This section concerns membership of women-only organisations, and is here:
12.1. They want comments only on the example in 12.1.3.
I am going to reply: strongly disagree, and:
- The example given is not clear and accurate because it is unclear how the women-only association knows the woman is trans. Finding that information out does not seem reasonable or proportionate for the purposes of most associations, and could amount to a breach of Article 8 ECHR.
- 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.
The next question applies to ‘Changes to chapter 13.’
This section concerns membership of sports and single-sex or separate-sex spaces. Buckle up, it’s the long one. It’s here:
13.1. This section concerns competitive sport.
I am going to reply: strongly disagree, and:
- This guidance is very dense and unclear.
- The definition of a ‘gender-affected activity’ is factually inaccurate. 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 no reason to assume that allowing a trans person to enter a sporting competition would compromise ‘safety or fair competition’ for the reasons above.
- 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. Note that this respondent considers 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.
- There is no legal definition of ‘the physiological differences between men and women,’ and such a phrase would also not hold scientific merit.
13.2. This section is about sex-differentiated separate and single-sex spaces.
I am finding it difficult to argue that anything in this section is unclear in law, despite disagreeing with it all on a moral level. The text of the Equality Act 2010 has not changed, and the way the Supreme Court has interpreted ‘sex’ as ‘birth sex’ leaves this with less doubt than some other sections.
I am going to reply: don’t know, or agree, and:
- Feel free to add in any of the remarks you’ve previously added about how trans women are women, I guess. Without going too into the weeds.
13.3. This section is also about separate and single-sex spaces, on justifications.
I am going to reply: strongly disagree, and:
- Under the guidance laid out in section 13.3, a trans man cannot use the men’s room as it is not for people of his birth sex, but he cannot use the ladies’ room as he may cause alarm to cis women using the facilities due to his male gender. He is therefore without a place to use the bathroom.
- The example in 13.3.12 where the trans people must use the accessible toilet is unclear on two grounds. Firstly, this is likely to cause disadvantage to disabled or other mobility-restricted users who require the accessible facility. Secondly, this is de facto segregation of trans people from cis people with regard to bathroom use, and is unlikely to stand up to legal challenge. I recommend that this is not used as an example and likewise that the guidance relating to it is rethought.
- It is unfair and inaccurate 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.
13.4. This section is about policies and exemptions on single-sex spaces.
I am going to respond: strongly disagree, and:
- 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.
- The example given in 13.4.3 is inaccurate 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. (thank you @astridsramblings for helping clarify this thought)
- Paragraph 13.4.8 does not offer any solution as to what the service provider should do in that case and it is therefore unclear.
13.5. This section concerns gender reassignment and separate or single-sex spaces.
I am going to respond: strongly disagree, and:
- 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. See note on 13.3 regarding making trans people use accessible facilities.
- In section 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 wholly inaccurate.
13.6. This section concerns communal accommodation.
I am finding little in here that I can define as legally unclear.
I am going to respond: agree, or don’t know.
The ‘any other feedback’ section:
Here is where you can put all the personal or other bits that you’ve been studiously removing from your answers.
Please be aware that you should only be commenting on the CONTENT of the Code of Practice, so the bits you’ve read and responded to, not the LAW.
However, this means you can talk about how it affects you or your loved ones or colleagues, etc.
Please try to be civil (but forceful!) in responding to this, as abuse will just be thrown out. It will only reach someone at the level of a back-office administrator and it won’t have any effect on them or on their bosses in the Commission itself.
P.S.: don’t enter your email at the end.
Thank you for reading if you’ve gotten this far! Please go and have a break now if you can, it’s been a long few pages.
And maybe give a trans person a little slice of cake, when you see them – or have one yourself if you’re trans. There’s been a lot to deal with lately.
Extra feedback garnered from the wonderful people of Bluesky!
@Astridsramblings adds: “Regarding 12.1 – do you think it’s worth saying it’s also unclear because it fails to elucidate when associations can lawfully be trans inclusive? Clear the EHRC think never but even the example seems to only say the association may reject the application, not that they must?
Taking orgs like the WI (unexpected bastion of progressiveness) who continue to want to include ‘anyone living as a woman’ or words to that effect – reading this guidance it looks an awful lot like they can’t, but unclear whether that is true or just EHRC deliberately choosing exclusionary example?”
@Harry-is-human adds: “An additional thought if I may – as a Public Sector worker any decision I make must comply with Human Rights Act. If guidance is vague or unhelpful about whether it had properly accounted for Article 8, it’s unworkable for me.”
Sandra Duffy 