The Scottish Prison Service policy had been that trans-identifying male prisoners who had not committed violent, harassing or threatening crimes against women did not generally pose “an unacceptable risk of harm to those housed in the women’s estates” [paragraph 11 of the judgment]. Trans-identifying men who had been convicted of a violent crime against women in the past could be placed in a women’s prison based on an individual risk assessment. 

The Scottish Government had refused to change this policy even after the Supreme Court made clear that “sex”, “woman” and “man” mean, and were always intended to refer to, biological sex, and that single-sex services are based on sex. 

John Swinney, the First Minister, claimed that when it came to housing trans-identifying prisoners, it was a complicated legal issue. All of the arguments the Scottish Ministers put forward were rejected by the Court of Session in the judgment handed down on 19th June 2026. 

The judge, Lady Ross, said: 

“In all the circumstances, the Prisons Guidance is unlawful.” [paragraph 184]

Although many trans-identifying men had previously been removed from the women’s estate in Scotland, some remained at the time of the judgment. They are now being moved out of female prisons and Prison Service guidance regarding transgender prisoners must be changed. 

Legal arguments

For Women Scotland argued that the ministers have a statutory obligation under rule 126 of the Prisons and Young Offenders Institutions (Scotland) Rules 2011, which requires that separate accommodation is provided for male and female prisoners. Women-only prison accommodation is intended for the protection of women prisoners as a group. That, they claimed, is “a bright line rule” that should not be crossed and does not need to be renegotiated every time it is used.

The Scottish minister’s main concern, as summed up by Lady Ross, was: 

“to resist the argument that the only lawful policy would be the exclusion of all trans prisoners from prisons of the opposite biological sex.” [paragraph 37]

The ministers argued that:

• the petition was not relevant because the issues should be heard on a case-by-case basis, not decided on a policy level, and the Equality Act 2010 allows individuals to bring claims
• trans prisoners have rights under Articles 2, 3, 8 and 14 of the European Convention on Human Rights (concerning the right to life, freedom from torture and degrading treatment, autonomy and private life and non-discrimination)
• the Supreme Court decision in April 2025 was a starting point when deciding on where trans-identifying prisoners should be accommodated, but not the final word as it had not considered the legal intersection with the convention. 

The ruling

Although the judgment sets precedent only in Scotland, it will be persuasive in other jurisdictions, and it was based on reasoning that applies to other types of single-sex and separate-sex services, not just prisons. 

Policies must be lawful

There is no need or expectation that individual women harmed by the policy would have to bring legal cases in order to test whether it is lawful. Service providers and public bodies must take account of all their legal obligations when devising the policy. 

“… the structure of the EA 2010 and the fact that it allows for individuals to bring claims do not provide a complete answer to this petition in the way contended for by the respondents. In general terms, service-providers and those who exercise public functions must make sure that the ways in which they carry out those responsibilities are lawful. They must be prepared to meet individual claims but they will only be able to do that in a considered and consistent way if, at the stage of devising policy, they take account of all of their obligations, including those under section 29 of and Schedules 3 and 22 to the EA 2010. If they adopt a policy which, when implemented in individual cases, will result in a breach of their statutory obligations, then that policy may be challenged as being unlawful.” [paragraph 58] 

The Scottish Prison Service (SPS) tried to argue that its policy of housing trans-identifying men in women’s prisons was “pragmatic” and similar to a mother taking her young son into a female toilet or changing room. The judge disagreed. She said that when a woman takes her young son into the ladies’ toilets with her, the boy’s “presence derives from that of his mother” and a baby boy being born in a women’s prison does not stop the prison from being for women only.

Separate-sex prisons are allowed

The Equality Act does not require separate-sex prisons, but it allows them.

But there is a legitimate basis for not allowing trans-identifying men in women’s prisons, namely protecting women’s dignity, safety and privacy, and the prison context is important. 

“Sex segregation in prisons is not mandated in terms by the EA 2010, but it is lawful. Sex segregation is protected by the provisions of the EA 2010 which are, as expressed by the Supreme Court, “directed at maintaining the availability of separate or single spaces or services for women (or men) as a group”. That can be accepted without the need to examine the circumstances of an individual prisoner in the context of a delictual [i.e civil] claim. For separate spaces to be maintained in a way that is foreseeable and consistent, there require to be rules, whether statutory, as in this case, or otherwise, which are capable of general application. The exemptions or carve-outs, whether in terms of Schedule 3 or Schedule 22, can only sensibly be operated on a group basis. A separate sex space is lawful if either of those exemptions applies. Following FWS 2, lawful sex segregation in prisons means that trans prisoners are excluded from prisons for the opposite biological sex. [paragraph 82]

This recognition that separate-sex spaces rely on rules that are foreseeable and consistent is a clear justification for providing straightforward separate-sex services. 

Sex discrimination against women

For Women Scotland argued that placing male prisoners in the female estate would itself result in sex discrimination and would at least be perceived as having the effect of violating the dignity of women prisoners or creating an intimidating, hostile, degrading, humiliating or offensive environment for them, and that that would be harassment. The SPS argued that in both cases, evidence of individual harm would be needed. 

The judge disagreed, saying that while harassment might need evidence in relation to sex discrimination, there is no need to refer to the circumstances of an underlying claim in order to bring a challenge to the policy. 

She agreed that there is a basis to conclude that the accommodation of male prisoners in the female estate would result in female prisoners receiving less favourable treatment because of their sex. 

“There are disadvantages associated with the sharing of accommodation by female and male prisoners; were it otherwise, there would be no need for sex segregation.” [paragraph 89]

Bright-line rules are legitimate 

The law recognises the necessity for clear rules which are not subject to a case-by-case analysis in their application. 

“The imposition of a bright line rule may have adverse consequences for individuals but there is a strong line of authority which makes clear that, as explained by the European Court of Human Rights in Animal Defenders at paragraph 106: ‘a state can, consistently with the Convention, adopt general measures which apply to pre-defined situations regardless of the individual facts of each case even if this might result in individual hard cases’.” [paragraph 135]

Balancing human rights 

All prisoners, including trans-identifying prisoners, have rights under the European Convention on Human Rights. 

Article 8 states that everyone has the right to respect for their private life. However, regardless how much a trans-identifying man believes he is a woman, he does not have the right to be placed in the women’s prison estate. 

“… there is no case to support an argument that Article 8 entails a right for a trans woman to live in the same place as and in the company of women. It is precisely because of the impact of mixed sex accommodation provision on the privacy and dignity of the would-be fellow prisoners that the restriction in rule 126 exists and that immediately shows that, even if Article 8 rights are engaged, the interference is justified under Article 8(2). Sex segregation is necessary for the protection of health or morals, or for the protection of the rights or freedoms of other prisoners.” [paragraph 125]

This is because Article 8 rights are qualified and sex segregation in prisons is justified. 

Under Articles 2 and 3, the SPS is obliged to protect life and not to subject prisoners to inhuman or degrading treatment. But this does not mean that it is obliged to accommodate a trans-identifying prisoner in a prison for the opposite sex. The rights of all prisoners must be considered and balanced. 

Both the Scottish Human Rights Commission (SHRC) and the Equality and Human Rights Commission (EHRC) intervened and argued against the petition. They drew attention to both the need to protect the convention rights of women prisoners and the need to balance those rights in the event of a conflict. However, they were primarily focused on ensuring that, when it came to the placement of trans-identifying prisoners, there was not a “without exception” policy. They argued that this could breach the rights of trans-identifying prisoners. The SHRC’s solution was to “have a human rights framework within which to make individual assessments”. [paragraph 47]

Women’s human rights are protected

That both the SHRC and the EHRC, alongside the Scottish Government, failed to stand up for women’s human rights until a grassroots organisation brought the case is shameful.

The post Males no longer allowed in Scottish women’s prisons: the law is clear appeared first on Sex Matters.

We show how UK law provides for separate sport for women and girls in several different ways, for fairness, safety and opportunity, from grassroots participation to elite competition, and why not having a female category may result in legal challenges for indirect discrimination and harassment.

The post Getting back on track: a new report appeared first on Sex Matters.

Rules and policies that allow men to participate, compete or use facilities “as women” disadvantage women. 

Sex Matters’ new report, Getting back on track, explains how the Equality Act 2010 provides the legal framework for protecting and providing for women and girls in sport.

• Read the report online.
• Download a pdf version.
• Listen to Fiona McAnena and Maya Forstater discuss the report in the Sex Matters podcast.
• Read Maya Forstater’s speech at the report launch at the House of Lords on 4th June 2026.

Under the Equality Act, sports organisations can be service providers, employers, associations and qualification authorities. Duty bearers that design or operate policies (or instruct, cause or induce others to do so) which put women at a disadvantage are at risk of claims for sex discrimination. Public authorities may also face claims that they are not fulfilling the public-equality duty. Women and “trans women” do not share a protected characteristic, meaning that this group cannot be the target for lawful positive action “for women”.

Legal misunderstanding

Over the past 15 years, governments, sports councils and national governing bodies (NGBs) have conflated the protected characteristic of “sex” (innate biology) with “gender reassignment” (identifying as transgender). This resulted in policies that prioritised allowing men who identify as women to access female spaces, activities and competitions under the banner of “inclusion”, undermining female-only provision.

The Supreme Court ruling in For Women Scotland v Scottish Ministers clarified that in the Equality Act, the terms sex, woman, and man refer to a person’s innate biology, thus confirming that it is lawful to exclude men (including all “trans women”, regardless of whether they have a gender-recognition certificate) from benefits, services and facilities provided for women. 

The court affirmed that including biological men in provisions for women undermines the purpose of the Equality Act exceptions that allow single-sex provision and the public-sector equality duty. 

It’s not just Section 195

The legal exceptions that allow for single-sex activities and facilities in sport go well beyond those concerned with participation as a competitor. They include exceptions that enable service providers to give women and girls the time, space and resources they need to thrive in sport. Supporting female participation isn’t just about who gets to compete in which event, but about what enables sports providers to offer services, investment, competitions, facilities and development programmes to women and girls across a range of situations: 

• Single-sex associations (Schedule 16)
• Single-sex and separate-sex services (Schedule 3 Part 7)
• Positive action to meet specific needs of women or men (Section 158)
• Charities for women or for men (Section 158)
• Competitive events (Section 195)
• Employment limited to men or women where this is a genuine occupational requirement (Schedule 9).

The exceptions are permissive rather than prescriptive, but this doesn’t mean providing for women and girls in sport is optional. 

• Organisations that cater for both sexes should make sure that they consider the needs of women and girls: failing to provide fair and safe sports opportunities may amount to indirect sex discrimination.
• The public-sector equality duty (Section 149) requires that public authorities consider women’s needs when setting policies. This includes the UK sports councils and local authorities. 

Unlawful policies and practices continue

Despite the legal clarity of the Supreme Court ruling, many organisations continue to operate unlawful policies. Examples of current practices that undermine women’s sport include:

• Misguided inclusion policies: bodies like the Lawn Tennis Association and Royal Yachting Association encourage local clubs to presume inclusion for “trans” individuals, allowing trans-identifying men into women’s competitions even though this leads to female exclusion and self-exclusion. 
• Female participation programmes undermined: activities aimed at increasing female participation, such as British Cycling Breeze Rides, are advertised for women but welcome trans-identifying men. The result is that women who have been led to expect a women-only activity may find themselves confronted with a man, sometimes in secluded locations.
• Unreliable data and rankings: some charities such as Parkrun encourage trans-identifying men to register by “gender” rather than sex, allowing male runners in the female category to inflate their age grade scores and top the female rankings, rendering women’s finish positions unreliable. 
• Culture of fear: the sports sector has created an atmosphere of intimidation, in which women are warned against discussing fairness and safety, and risk sanctions or non-selection if they speak out against the inclusion of males in the female category.

Sports bodies that continue to operate policies that allow men in women’s or girls’ activities risk legal liability for direct and indirect sex discrimination against women, as they are no longer protected by the Equality Act exceptions. Public bodies also risk judicial review for failure to comply with the public-sector equality duty.

The need for leadership

You shouldn’t need to be a scientist or a lawyer, an expert in the Equality Act or particularly brave to argue that sports should be provided fairly and safely for women and girls, but right now you do. 

The report ends with a call for leaders in the sector to step up:

1. The minister for sport must call for opportunity, fairness, and safety for women and girls to be respected at every level of every sport.
2. The Sports Councils Equality Group (SCEG) should update its misleading 2021 “trans inclusion” guidance to withdraw the so-called trans-inclusion option, making clear that women’s and girls’ activities must exclude everyone male.
3. The sports councils must make a joint statement committing to women’s sport and producing clear guidance that when it comes to protections against sex discrimination, “woman” means female and “man” means male.
4. Individual sports councils need to bring data-collection surveys and registration data in line with the biological, binary reality of sex as defined in the Equality Act.

National governing bodies and publicly funded organisations should sign a fairness pledge to protect women’s sport and to use sex-based categories in their equality impact assessments.

The post Sex matters in sport appeared first on Sex Matters.

The post EHRC draft code of practice for services, public functions and associations – briefing for Parliamentarians appeared first on Sex Matters.

Yet the following day, counsel for the Minister for Women and Equalities put forward arguments in the High Court that led Mr Justice Swift to say she was “trying to rewrite For Women Scotland”.

Zoë Leventhal KC, making submissions on behalf of Bridget Phillipson in the case of Good Law Project and others v Equality and Human Rights Commission, denied this. But she presented an extraordinary series of convoluted arguments that seemed designed to create confusion and uncertainty and to undermine the basic duty of employers and service providers to ensure that single-sex facilities for women offer adequate privacy from men.

In its manifesto the Labour Party had promised to “continue to support the implementation of its single-sex exceptions”. And on 5th May, following the Supreme Court judgment, Phillipson had written to the Scottish Government saying: 

“The UK government has always supported the provision of single-sex services based on biological-sex. The ruling brings clarity and confidence, for women and service providers, such as hospitals, refuges and sports clubs.” 

But now the government is backtracking. 

Following the Supreme Court judgment in April, the Equality and Human Rights Commission (EHRC) published an admirably clear interim update on single-sex facilities. It said, in short, that women’s toilets are for women, men’s toilets are for men, and those who don’t wish to use the correct toilet for their sex should use the unisex option. It reassured employers and service providers that if they offer all three and have clear rules, they can be sure they are meeting everyone’s needs and not breaching the law. 

The Good Law Project (GLP) says this sensible advice is wrong in law and “transphobic”, and that it breaches trans people’s human rights. It has brought a legal challenge together with three anonymous individuals who felt upset when their employer responded to the judgment by telling staff who didn’t wish to use the correct facilities for their sex to use the unisex facilities.

In the government’s intervention in the case, the Minister for Women and Equalities declined to back the EHRC in defending its update, instead entering a “neutral” plea on the question of whether its advice to service providers and employers was correct in law. 

Questioning the exceptions

The government’s legal submissions appear to be a desperate search for a loophole that would enable service providers and employers to continue to allow trans-identifying men into women’s spaces. The written submissions call single-sex services “trans-exclusive” and seem set on undermining legal certainty and reinventing the argument for “case-by-case” decision-making:

“The premise of the trans-exclusive interpretation of the EA 2010 appears to be that, absent lawful reliance on the [single and separate sex service] exceptions, a [single-or separate sex service] will amount to direct sex discrimination of men and/or women.”

This was up till now an uncontroversial statement of the obvious. If you put up a sign that says “women only” or “men only” you are discriminating against members of the opposite sex by excluding them, and the Equality Act provides single-sex and separate-sex exceptions to allow this. 

The EHRC’s code of practice for services, which has been in place since 2011, contains a section titled “Single-sex only services”. It says:

“The Act provides that the prohibition of sex discrimination does not apply where services are provided exclusively to one sex, as long as to do so is a proportionate means of achieving a legitimate aim, and at least one of the conditions set out below applies…”

The fifth of those conditions is: 

“The service is for, or is likely to be used by, more than one person at the same time and a woman might reasonably object to the presence of a man (or vice versa).”

The example given is:

“Separate male and female changing rooms or any service involving intimate personal health or hygiene.”

This clearly covers male and female toilets.

But, in a piece of logic that appears to have been sourced from transactivist social media, the government’s submissions now argue that perhaps the single-sex and separate-sex exceptions don’t apply to such everyday facilities as separate men’s and women’s toilets at all. 

“The first question in law must logically be whether a [single or separate sex service] amounts to direct sex discrimination. If it does not, then there is no need to consider the Exceptions.”

So it says that you have to start with an individualised, fact-sensitive determination. In most cases men don’t want to use the ladies’, so there is no less favourable treatment in not allowing them to. In oral submissions Leventhal said that unless a claim of sex discrimination was made out:

 “you wouldn’t get to the analysis of having to maintain a single-sex exception based on an exception to discrimination that isn’t present.”

This is starting at the wrong end of the argument for a respondent (such as a service provider or employer). The purpose of the single-sex and separate-sex exceptions is to give these duty bearers a safe harbour to offer straightforward, familiar single-sex and separate-sex services including toilets, changing rooms and showers without fearing that they are breaching the sex-discrimination provisions and without having to go through complex legal arguments to consider whether any specific individual could be lawfully excluded. 

The Schedule 3 exceptions can be used in order to provide a separate-sex or single-sex service, wherever the service satisfies at least one of the “gateway” conditions and is a “proportionate means of achieving a legitimate aim” to offer a service designed in this way, rather than to be provided to both sexes together. As the notes to the relevant part of the Equality Act say:

“This paragraph contains exceptions to the general prohibition of sex discrimination to allow the provision of single-sex services.”

Now the government is arguing that the question of whether the exceptions apply depends first on determining whether an individual man can prove that he suffered less favourable treatment on the basis of sex by being excluded from a women’s space. If he didn’t then no unlawful discrimination occurred. If he did then the exceptions can kick in and no unlawful discrimination occurred. This is a pointless diversion from the basic purpose of the law.

The only purpose of this argument seems to be to try to create uncertainty and blur the rules about whether an apparently single-sex service is a single-sex service at all. 

Creating uncertainty

The Minister for Women’s legal team then threw more transactivist talking points at the EHRC’s simple clarity. 

Perhaps single-sex services need to allow for “derogations”, the submissions argue. Both GLP and Leventhal pointed out that mothers are allowed to take their infant sons into the women’s changing rooms at the swimming pool, and suggested that this created the possibility of allowing grown men into female-only spaces. 

“Now, that’s a point that perhaps ought to be addressed, because there may well be a relevant distinction between those two scenarios,” said Mr Justice Swift.

“I don’t wish to advance the point any further, my Lord,” said Leventhal.

“So he’s got the interesting bit, and you’re saying you’ve got nothing more to say?” replied the judge.

But many women’s services, including women’s refuges, admit young children of either sex. Using this to introduce uncertainty about whether adult men should be allowed in “as women” is absurd. 

The government’s submissions included two further ridiculous scenarios: “A theatre attendant permits a pregnant woman who faces a queue for the women’s lavatory in the interval to use the men’s lavatory”, and “A peripatetic female massage therapist who only provides massages to women makes an exception for a man with whom she has a pre-existing professional relationship.”

“Could we come to an example much closer to home? Because I always find they help,” said Mr Justice Swift, seemingly exasperated by the government’s diversion from the main point. 

“So the minister’s submission… is that a single-sex provision, a provision which is open to, say, women and trans women, is still a single-sex provision. Is that right?… Because that’s what you appear to be saying,” he said.

Leventhal replied No, but the government’s submissions seemed to dodge back and forth around this question, sometimes suggesting that such provision was single-sex with “derogations” and sometimes suggesting that although described as for “men” or “women” they were not actually separate-sex or single-sex in the sense meant in the Equality Act. On whether a service provider could provide a women-only service that allowed in trans-identifying men, she said: “You may… You may be unable to… There’s a possibility… You might nonetheless need to look at the fact-sensitive issues”. 

None of this makes sense in the real world, where service providers need to be clear to everyone whether a service or space is for men, women or both sexes. This is essential to avoid creating situations that are likely to be hostile, humiliating and degrading – for women or for men who wish they were women, or indeed for both – and unworkable for staff. 

Rewriting the law

The government seems to be trying to stick to the faulty interpretation of the law that it advanced before the For Women Scotland judgment.

Last year members of the public sent in 404 bad policies in response to a call for evidence from the previous government. 

The Office for Equality and Opportunity, which has long been the prime promoter of Stonewall law throughout the civil service, concluded that the majority of the policies which allowed those with the protected characteristic of gender reassignment to use single-sex spaces that “correspond with their self-identified gender” were “correctly interpreting the Equality Act’s single-sex spaces provisions”.

The government’s interpretation at the time was that policies were unlawful only if they suggested that allowing trans-identifying men into women’s spaces was mandated by the Act. 

The Supreme Court judgment has made clear that this interpretation was wrong. This is what was reflected in the EHRC’s interim update. 

The government should know that if it won’t comply with the law, it is going to end up in court. 

The post The government is “trying to rewrite For Women Scotland” appeared first on Sex Matters.

This email campaign has now finished – thank you to all those who wrote to MPs.

So far more than 2,000 people have written to their MP. This is the third of three blog posts about our asks. 

3. Tell the civil service to follow the law across the government’s own operations and buildings

The ongoing scandal of workplaces that allow trans-identifying male employees to use women’s toilets, changing rooms and showers – and let male visitors use women’s toilets – is continuing even in the government’s own buildings. The law is perfectly clear, particularly for workplaces, which are subject to the 1992 Workplace Regulations. Adequate separate facilities for women and men are a legal requirement. 

The Palace of Westminster, which houses MPs and peers and their staff, has sorted itself out, restoring clarity over who can use the women’s and men’s toilets, and signposting unisex toilets that can be used by either sex for anyone who prefers them. 

But many government offices have relabelled men’s and women’s toilets as “gender-neutral” in recent years, even though they do not meet the legal standard of being single-occupancy fully contained rooms. Some have signs asking users to close the door when using them – something never seen in a women’s toilet.

It is hardly surprising when civil service departments and agencies for a long time competed to be ranked in the Stonewall Top 100 Employers list, instead of following the law. 

Separate-sex toilets may seem like a small thing, but they are important for everyday dignity and privacy. They protect women and girls from the risk of voyeurism and exposure by men, and they make everyone feel more comfortable. 

Claims that it is expensive or unworkable to expect people to follow ordinary sex-based rules do not hold water. These offices all operated separate men’s and women’s facilities for many years, and can do so again. They already have unisex alternatives so no-one has to feel uncomfortable. There really is no excuse for not following the law. 

Even as the Darlington nurses are in court making the case for male-free changing rooms at work, the government is presiding over unlawful policies like these. It should be leading by example. 

The post It’s time to TELL the civil service to follow the law appeared first on Sex Matters.

This email campaign has now finished – thank you to all those who wrote to MPs.

So far more than 2,000 people have written to their MP. This is the second of three blog posts about our asks. 

2. Commit to fixing the problem of inaccurate sex records, and their use in new forms of digital identity

The law is clear. But one of the things that makes it difficult to provide single-sex services with confidence is that service providers cannot rely on official documents such as passports and driving licences to provide reliable information on anyone’s sex. Even medical records can be changed, and none of this requires a gender-recognition certificate. 

No systematic records have been kept, so the numbers are not known: there could be as many as 100,000 people whose ID shows them as the sex which they are not. And the government seems set on making it worse by developing digital identities based on this unreliable sex data.

Official data systems are in such a mess in relation to sex because of decades of ad-hoc and informal measures attempting to accommodate the wishes and protect the privacy of people who identify as transgender. There are better ways of protecting privacy – by making it clear where sex is recorded, making sure it is accurate and only sharing the data if there is a lawful basis to do so. 

Whether or not the UK adopts a digital identity system, the problem with flawed, contradictory sex records must be addressed now, following the Supreme Court’s judgment which made clear that many ordinary services can and should be provided based on biological sex.  

The public-sector equality duty requires data collection about sex, not about heterogenous groupings of women and trans-identifying men who, the Supreme Court pointed out, “may have little in common”. The Supreme Court warned against corrupting data collection and said: 

“We do not understand how the interests of this heterogenous group can begin to be considered and addressed”. 

It’s time to address this so that government data and official documents can be trusted. 

The post It’s time to COMMIT to fixing the data appeared first on Sex Matters.

This email campaign has now finished – thank you to all those who wrote to MPs.

So far more than 2,000 people have written to their MP. This is the first of three blog posts about our asks. 

1. Revoke the old EHRC code of practice

Shortly after the Equality Act was enacted in 2010, the Equality and Human Rights Commission developed and published statutory guidance on how to comply with this new law. There is a code of practice for employment and another for equal pay, as well as a separate code of practice for services, public functions and associations. This was issued in 2011. 

All of this guidance is now out of date. The EHRC has revised the code of practice for services, public functions and associations, taking account of the Supreme Court’s judgment in April 2025 which made clear that the terms man, woman, male and female in the Equality Act 2010 refer to biological sex.

This revised code of practice was delivered to the Minister for Women and Equalities, Bridget Phillipson MP, on 4th September 2025. It is not a new law or even a change to the law. What should happen is a simple process where the old code of practice is revoked and the new one is laid before Parliament, and forty days later it comes into force as guidance endorsed by Parliament. But she has not yet done this. 

Instead the government is claiming that a regulatory impact assessment is needed, which could delay the adoption of the new guidance by as much as a year. In the meantime, the 2011 guidance remains in force, even though it is legally wrong. 

Government guidance still says “transsexual people” should be treated “according to the gender role in which they present”

The 2011 guidance did a great deal of mischief. There is nothing in the Equality Act to support this interpretation, but the 2011 code of practice said:

“If a service provider provides single- or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present. However, the Act does permit the service provider to provide a different service or exclude a person from the service who is proposing to undergo, is undergoing or who has undergone gender reassignment. This will only be lawful where the exclusion is a proportionate means of achieving a legitimate [aim].”

The 2011 guidance also said:

“Service providers should be aware that where a transsexual person is visually and for all practical purposes indistinguishable from a non-transsexual person of that gender, they should normally be treated according to their acquired gender, unless there are strong reasons to the contrary.”

Again there is nothing on the statute about this. In any case, a policy based on the idea that some trans-identifying people may be “indistinguishable” from the other sex is unworkable in practice. 

All this has gone from the new code of practice, but the latest government excuse means that may not be published for another year.

Complying with the law is not a culture war

The Times reported a government source as saying that complaints about the delay were “put about to stoke divisive culture wars”. This has been a repeated refrain of this government. But expecting compliance with the law cannot be dismissed as a culture war; it is entirely reasonable. Meanwhile the failure to provide genuine male-free spaces and services is causing genuine harm. 

The law is already clear. Organisations which keep old policies in place allowing men into women’s spaces cannot rely on the 2011 guidance for legal justification, because the Supreme Court judgment has shown that it is incorrect. The EHRC chair, Baroness Falkner, has repeatedly said that no-one should wait for the guidance: they should comply with the law now. Any suggestion that waiting is the safer choice legally is misguided. 

If the Minister for Women and Equalities will not lay the revised code of practice before Parliament quickly, she must at least withdraw and revoke the 2011 guidance, which is providing advice which is now known to be unlawful.

The post It’s time to ACT to sort out the code of practice appeared first on Sex Matters.

The hearing on 12th and 13th November in London comes nearly a year after the Supreme Court heard the For Women Scotland case. 

The Good Law Project is challenging the national equality watchdog’s interpretation of the Equality Act and workplace health and safety regulation, and its guidance, following the Supreme Court’s judgment, that employers and service providers should stop telling employees and service users that they can use opposite-sex facilities if they identify as trans or non-binary. 

This is an important case which could provide greater confidence that the law is clear and that women should not find themselves forced to share “female” toilets, showers and changing rooms with men. 

We hope that the judgment will provide greater confidence to service providers and employers and their frontline staff, to trans-identifying people and to women about what the familiar “male” and “female” signs on a door mean in terms of who is allowed in. 

Whenever these kinds of cases are heard it is important that women’s experiences and viewpoints are considered, and not only the arguments of trans activists. Our evidence draws on our 2022 survey Why single sex services matter, to which some 7,000 people responded. 

We have also been allowed to put in evidence on female biology from physiotherapist Elaine Miller and from Michelle Shipworth, a survivor of male violence in a women’s toilet. Sex Matters CEO Maya Forstater has provided evidence on the recent history of guidance and policy in this area, and the experience and concerns of women in relation to everyday privacy and dignity. These are written witness statements, supported by evidence, which we will publish. There is no cross-examination in judicial reviews. 

As well as providing written submissions and evidence, Sex Matters has been given 30 minutes to make oral submissions to the court. We have made legal submissions on two points: 

1. The proper construction of the Workplace Health and Safety Regulations 1992.
2. The detriments to women that arise when men (including those who identify as trans and non-binary) are allowed to access women’s toilets and changing facilities.

You can read our arguments in our application to intervene:

We are represented by Rupert Paines of 11KBW and solicitor Paul Conrathe. The interested parties in the case are the Minister for Women and Equalities, the Secretary of State for Work and Pensions, the Health and Safety Executive and the Scottish and Welsh Ministers. 

What is the case about?

The Good Law Project (GLP) is challenging the EHRC’s April update on the practical implications of the UK Supreme Court judgment in FWS and its draft updated code of practice. In particular it is challenging the sections saying that in workplaces and services open to the public where separate-sex or single-sex services are lawfully provided: 

• “trans women” (biological men) should not be permitted to use the women’s facilities and “trans men” (biological women) should not be permitted to use the men’s facilities.
• where possible, mixed-sex toilet, washing or changing facilities in addition to sufficient single-sex facilities should be provided.

GLP is also seeking to challenge any future iteration of the guidance that makes the following assertions of law: 

1. That references to “men” and “women” in the Workplace Health, Safety Regulations 1992 are to be construed as referring to a person’s “biological sex”. 
2. That the workplace regulations require employers not to permit “trans women” to use the women’s toilets or “trans men” to use the men’s toilets. 
3. That if trans men are permitted to use the men’s toilets, or trans women permitted to use the women’s toilets, this means that the toilets must be made open to all users of the opposite sex. 
4. That where single-sex facilities are made available, it is lawful for trans men to be required to use the women’s toilets, and trans women to be required to use the men’s toilets, as long as they are not put in a position where there are “no facilities for them to use”. 
5. That it is sufficient to ensure lawfulness (under the Human Rights Act 1998 and the Equality Act 2010) for trans people to be provided only “where possible” with unisex facilities in addition to single-sex facilities.

GLP argues against this that if the EHRC guidance is accurate on the law then the law itself is incompatible with the Human Rights Act 1998 and the European Convention on Human Rights. 

We say that other people’s rights matter too. 

How you can help 

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