Institutional transphobia deepens in the UK – EHRC again
The United Kingdom’s descent into rabid transphobia continues apace with the announcement on 20 May 2025 of a consultation on updating the (so-called) Equality and Human Rights Commission (EHRC)’s Code of Practice for services, public functions and associations (published in January 2011 and unchanged since, even though there was another consultation on changes at the end of last year).
EHRC chair, Kishwer Falkner
It is less than a month since Kishwer Falkner’s deeply compromised EHRC issued interim guidelines on the practical consequences of the Supreme Court’s judgement on the meaning of ‘sex’ in the Equality Act 2010 (Kishwer and pals try to flush trans people out of toilets). (Excuse that horrible sentence – I’ve left it in because I’m oddly impressed that I nested four prepositional phrases without thinking!)
Now further guidance is upon us – and I would encourage you, if you can, to let the EHRC know that the proposed changes are completely unacceptable.
This guidance, together with things like leaked Labour Party plans to exclude trans women from its Women’s Conference make it unsurprising, but deeply concerning, that the UK has plummeted in ILGA Europe’s rankings for LGBTI safety, equality and freedom. The UK now has a score of just 6.57% for legal gender recognition, placing it well below Turkey, for instance, and closer to Russia. As a consequence, the UK now ranks 22nd overall among European countries, with a score of 45.65%, a huge drop since peaking at 86% in 2015.
ILGA country scores for legal gender recognition in 2025, highlighting the UK’s position
I don’t have a huge amount of energy for anything these days – one of the reasons my blog has lain dormant for a while. But I’m pushing myself to do a deep dive into the proposed changes to the Code of Practice because it feels really important. And I hope you find it useful – please comment below if you do, or indeed if you think I’ve missed something.
Redefining sex?
In light of the Supreme Court’s ruling, the EHRC claims to have changed the definition of ‘legal sex’ throughout its Code of Practice, which applies throughout England, Scotland and Wales (but not in Northern Ireland).
Now, I have to confess that I have never (until now) even so much as glanced at this Code of Practice, and as it runs to almost 250 pages, I’m not about to read it from start to finish. Also, given that sex is one of the nine protected characteristics in the Equality Act 2010, it’s not too surprising that the word ‘sex’ appears 116 times!
There is, however, no mention of ‘legal sex’ anywhere in the current Code of Practice, and nor is there any definition of the term ‘sex’ in the Code or in the 2014 supplement (which reflects changes in primary legislation between 2010 and 2014).
There are places in both the Act itself and in the Code where the meaning of sex is obliquely clarified as differentiating between men and women or between boys and girls. (Yes, it’s quite painful to read.) The EHRC says they want to change this definition:
‘Legal sex is the sex that was recorded at your birth or the sex you have acquired by obtaining a Gender Recognition Certificate (GRC).’
to this:
‘Legal sex is the sex that was recorded at your birth.’
But the former doesn’t appear anywhere in the current Code, or in the Act – or indeed anywhere else on the internet as far as I can see (except that it’s now been quoted on Mumsnet, of course!).
So thus far it’s pretty hard to see what exactly the EHRC is planning to change in the existing guidance.
By the way, numeric references to sections don’t correspond to anything I can see, just to make things extra-hard to understand. The Code of Practice is only directly available as a Word document, which I originally opened in Pages, which didn’t show the section numbers at all. I also tried opening it in LibreOffice, which I thought had done the trick – but the section numbers were completely different from the ones referred to. So I’m just fumbling around, searching for relevant strings of text. (No, I don’t own any version of Word. I wonder if I could sue the EHRC under the Equality Act 2010 on grounds of failure to make their guidance accessible?)
(There is, as a I discovered part way through writing this, a PDF version of the Code of Practice, which strangely enough has the same numbering as the Word document opened in LibreOffice. So I have no idea what the section numbering is that the consultation is referring to. I can only assume that they’re renumbering everything.)
Chapter 2: Who has rights?
Proposed updates to the Code of Practice are not at all clearly identified, so I’ll try to summarise what’s actually being altered, but I won’t touch on inconsequential changes, which generally seem to be there to make the text easier to read.
Chapter 2 of the Code of Practice introduces the nine protected characteristics of the Equality Act 2010, and asks who has rights under the parts of the Act that deal with services, public functions and associations.
Section 2.1: Gender reassignment
Context – oh, and trans kids
For the purposes of the consultation, we are asked to disregard paragraphs numbered 2.1.1 to 2.1.5, these being provided for context. But I’m going to ignore that instruction.
The first paragraph (old 2.17) is essentially unchanged, as is the second (old 2.18), except for a welcome language update, changing transsexual to the more modern (and potentially more inclusive) trans. Sadly, the writers then take a whole paragraph (2.1.3) to explain that the Equality Act 2010 uses the older term, and that they mean the same thing by the latter – so not all trans people are in fact included.
The three new paragraphs 2.1.3 to 2.1.5 are essentially a complete rewrite of seven paragraphs (old 2.19 to 2.25), three containing examples, which it seems the current writers have decided to omit. (I don’t think they’re great examples, but is there to be nothing in their place?)
Old paragraphs 2.19, 2.20 and 2.22 are, I believe, adequately covered by new paragraph 2.1.4. I’m not sure of the usefulness of old paragraphs 2.23 to 2.25 (the first of which is just an example), but they don’t seem to have counterparts in the new document.
The old paragraph 2.21 seems to have no counterpart in the revised Code either:
‘This broad, non-medical definition is particularly important for gender variant children: although some children do reassign their gender while at school, there are others who are too young to make such a decision. Nevertheless they may have begun a personal process of changing their gender identity and be moving away from their birth sex. Manifestations of that personal process, such as mode of dress, indicate that a process is in place and they will be protected by the Act.’
I wonder why the writers have chosen to say nothing at all about trans children?? (Grim sarcasm.)
Gender Recognition Certificates
The existing Code of Practice says in paragraphs 2.26 and 2.27 that anyone who has a gender recognition certificate (GRC) must be treated ‘according to their acquired gender’, that their new birth certificate should be sufficient evidence of their ‘legal gender’, where that’s in any way relevant, and that no one in general should have any reason to request to see a GRC.
The first four paragraphs the EHRC would actually like to have feedback on replace these old paragraphs, and they are horrible.
Paragraph 2.1.6 states that the recent Supreme Court ruling means a GRC doesn’t change a person’s legal sex for the purposes of the Equality Act 2010. This is bad, obviously, but I can’t complain that the EHRC are making stuff up here. It was the Supreme Court that did that.
In paragraph 2.1.7, we have our first biological sex. I won’t point out every time this has been inserted, but let’s just say the gen-critters will be pleased. Also, for the purposes of the Act: a trans man with a GRC is a woman and a trans woman with a GRC is a man. Ugh!
They can tell me in paragraph 2.1.8 that we’ll be protected from discrimination ‘because of gender reassignment’, but I don’t really believe them.
And yes, in 2.1.9, we’re now told that we’re only protected from sex discrimination on the basis of our (assigned) birth sex, or indirectly in other cases.
Section 2.2 Asking about birth sex
First of all: oh no you don’t, it’s none of your fucking business!
This is a completely new section. Ten shiny new paragraphs, one being an example. Let’s look at that first (paragraph 2.2.7, my emphasis):
A trans woman goes to the office of a local support group and makes enquiries with the receptionist about the group counselling sessions they offer. Based on the needs of its service users, the group provides different sessions that are single-sex or mixed-sex. The receptionist reasonably thinks that the trans woman is a biological male and, as there are some other people waiting in the office, asks her to come into a side room to get more details about the support she is looking for. When they are in private, the receptionist explains the different group sessions that are offered and asks the trans woman what her birth sex is. When she confirms her birth sex, the receptionist provides her with the details of the mixed-sex groups she could attend.
Sorry, what?! Oh, I see, it’s all done very discreetly, in a private side room. So that makes othering a trans person completely acceptable. Of course. (Sarcasm again, in case you were wondering.)
The first two paragraphs in this section point out (a) that some people, including some trans or gender non-conforming people, may find it distressing to be asked about their birth sex, and (b) that asking trans people about this may risk unjustifiably interfering with their human rights under Article 8 of the European Convention on Human Rights.
Nevertheless, the remaining paragraphs suggest ways to delicately find out what someone’s genitals looked like when they were born. At least paragraphs 2.2.9 and 2.2.10 do warn about the (potentially criminal) consequences of following this murky path.
Section 2.3: What is sex? What is a woman? (etc.)
This feels tiresome, but here we have another five shiny (why do I keep mistyping ‘shitty’?) new paragraphs about birth sex.
Paragraph 2.3.1 says something, but I’m not sure exactly what. Paragraph 2.3.2 says that equality law only applies to biological men and biological women. No androids – sorry. Oh, and it says that ‘sex’ in the Equality Act 2010 means birth sex. Looking at a baby’s genitals – much biology.
Paragraphs 2.3.3 and 2.3.4 basically say having a GRC isn’t going to be of any use in a discrimination case, and directs people to the previous section if they want to know how to get you to show them your GRC.
Paragraph 2.3.5 is probably just there to piss off trans men. Sorry, I mean definitely.
Section 2.4: Sexual orientation
In the first paragraph (now numbered 2.4.1, formerly 2.58), the legally permissible kinds of people attracted to others of the same sex have been subtly changed from a gay man or a lesbian to a lesbian woman or a gay man. The writers reversed the order, perhaps to hide the real change: they seemingly want to make clear that only women can be lesbians – and obviously that means cis women as far as they are concerned. Or does it include trans men? I’m confused. Somebody should write a clarification of the meaning of the clarifying EHRC guidance on the clarifying Supreme Court ruling.
Anyway, they certainly don’t want to consider trans lesbians as attracted to others of the same sex (whether or not they are in possession of a GRC). After all, they would probably argue, trans lesbians are lesbian trans women, who are (in their upside-down world) ‘lesbian men’. Or are trans lesbians actually trans lesbian women, in which case their argument doesn’t seem to work? Angels, pinheads, …
In the fifth paragraph (old 2.62, now 2.4.6 – what happened to 2.4.4?), they seem to take a dig at the solidarity in our community. The paragraph says that gender reassignment (i.e. being trans) is unrelated to sexual orientation. The original added that this is the case despite a common misunderstanding that the two characteristics are related. Fair enough, I suppose. It also refers us to paragraph 2.17, now paragraph 2.1.1 (which is otherwise unchanged). Anyway, they’ve dropped the cross-reference and revised the text to say that the two protected characteristics are distinct despite often being grouped together (for example under the acronym ‘LGBTQ+ people’).
I think the sole purpose of this change is to sow the seeds of division and encourage ‘drop the T’ sentiment to flourish within the queer community. But I don’t think it will be that easy.
Chapter 4: Direct discrimination
The old paragraph 4.20 (‘Discrimination by perception’) contains an example of a (cis?) woman with a medical condition who is discriminated against on the grounds that she is perceived to be trans. That sort of thing’s not going to happen any more, is it? (Sarcasm again – get used to it!)
Anyway, the writers of the revised Code of Conduct have created two new examples, one (paragraph 4.1.2) about racism faced by people perceived to be Irish Travellers, and the other (paragraph 4.1.3) – wait for it! – about a trans woman being discriminated against because she is perceived to be a woman, despite the fact that she is not a woman under the Equality Act 2010. They’re really relishing the opportunities here, aren’t they!
New paragraph 4.2.2, which follows 4.2.1 (old 4.34) stipulates that trans men are protected from pregnancy and maternity discrimination because they are now legally women. (I’m so sorry to have to write this.)
Chapters 5, 8 and 12
I said I don’t really have the energy to do this, and I’ll be honest, I’m flagging here. It’s exhausting and depressing reading through these proposed changes.
Chapter 5 has a new example on indirect sex discrimination (5.1.3) – the provided context also seems to be new material.
Chapter 8 has a new example on harassment (8.1.6b) – and again the context seems to be new, though 8.1.6a was previously one of five examples in 8.13.
Chapter 12 has a new example (12.1.3) about a trans woman applying to join a women-only association. This follows the example in existing paragraph 12.46, now numbered 12.1.2. It clarifies that, thanks to the Supreme Court ruling, I would not be allowed to join such an association:
‘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 …’
I imagine it was this kind of thinking that led to the Labour Party’s sudden urge to expel trans women from its Women’s Conference. Perhaps I should keep quiet about being part of the Scottish Green Party Women’s Network (albeit not an active one at the moment).
Chapter 13: Exceptions
Chapter 13 of the Code of Practice is all about the exceptions carved out for various activities that would otherwise have fallen foul of the Equality Act 2010.
The changes to this chapter will warm the cockles of every TERF’s heart (if they have one). Keeping trans people out of sport, providing sex-segregated services, everything that gen-critters campaign for more of.
And I really can’t face reading any more (but you can plough through it in all its gory detail if you wish). I might come back to it later, but to be honest, probably not.
Does everyone in the UK hate trans people?
According to Betteridge’s Law of headlines, the answer is of course no!
It has been heartening to see pushback against the Supreme Court and the EHRC from a variety of sources. And in the last few weeks there have been a number of high-profile letters written in support of trans rights and against the Supreme Court’s biased ruling.
Enjoy all this lovely allyship:
And the British Medical Association’s Resident Doctors’ Conference last month voted in support of an emergency motion condemning the Supreme Court’s ruling as ‘scientifically illiterate’ and ‘biologically nonsensical’.
The tide will turn, and people who scapegoat minorities for all of society’s ills will lose. In the meantime, don’t forget to respond to the consultation, if you are able. It’s open until the end of June. 💜
#EHRC #EqualityAct2010 #EqualityAndHumanRightsCommission #GenderRecognitionAct2004 #genderRecognitionCertificate #ILGAEurope #LabourParty #UKSupremeCourt