The EHRC code of practice should stick to the law

This is the first in a series of posts focusing in detail on individual parts of the Equality and Human Rights Commission’s draft code of practice for service providers, associations and public bodies (read our full response to the consultation).

We are concerned that the EHRC is still promoting the discredited “case-by-case” approach. 

This is neither workable nor lawful. Schedule 3 Part 7 of the Equality Act sets out the circumstances where single-sex services are lawful, including that they must be a “proportionate means to a legitimate aim”. This is a legal test which is not a high bar to reach, but depends on having clear policies. 

In large organisations policies often have to be communicated across multiple sites and explained to staff and customers, on signage, websites and registration forms as well as verbally, on the phone and through training. Staff must be able to implement policies confidently and know what to do without having to make individual decisions. 

This is confirmed by the case of Seldon v Clarkson Wright and Jakes [2012] in which the Supreme Court endorsed the principle explained by the Employment Appeal Tribunal:

“Typically, legitimate aims can only be achieved by the application of general rules or policies. The adoption of a general rule, as opposed to a series of responses to particular individual circumstances, is itself an important element in the justification. It is what gives predictability and consistency, itself an important virtue.” 

But the EHRC has a long history of straying from the law in order to shy away from simply saying no to trans-identifying individuals and their lobby groups: . 

• Although the original consultation draft of the 2010 Code of Practice stuck tightly to the law, after lobbying by transgender activist groups the version finally published in 2011 departed from this and said that service providers should treat “transgender people according to the gender role in which they present”. It also gave the unworkable guidance that any decision to exclude a transsexual person from an opposite-sex space should take place only after discussion with other users, but also while maintaining confidentiality and taking care to “avoid a decision based on ignorance or prejudice”. This was wrong. 
• The EHRC defended this guidance in court in 2021, arguing that it “is correct in stating that excluding a trans-person from the service provided for their acquired gender will almost certainly be unlawful unless the service provider can show the exclusion is a ‘proportionate means of achieving a legitimate aim’…That is correct whether or not the trans person has a GRC.” This individualised approach turned out to be wrong. 
• Last year the EHRC published a draft updated code, which still argued that “if the justification for limiting or denying trans persons’ access to the single sex service for their acquired gender does not outweigh the potential discriminatory effects, it is likely to be unlawful to do so.” That was wrong (and failed to reference the judgment in FWS1). 
• In November 2024 the EHRC argued in the Supreme Court that “sex” in the Equality Act means “certified sex” and that the proper way to provide “single sex services” for women is to include males with a GRC within the group of “women” (with the possibility of then excluding some of them). This legal interpretation also turned out to be wrong. 

It is notable that while the Supreme Court has quashed the idea that sex is difficult to define, instead of going back to its earlier simplicity, the EHRC is now proposing to expand the code in a different way, namely by suggesting that single-sex services are fiendishly difficult to justify. 

We think that the current draft of the code is over-elaborate and leaves the door open to the idea that people who identify as transgender can aspire to use opposite-sex spaces. 

Rather than adding more detail to the code, we think a better approach would be to scale it back with fewer examples and greater simplicity and clarity, and with statements that clearly reflect statute or case law. 

The law can be summarised in a single paragraph: 

“In the Equality Act, men are male, women are female (s.11 EqA) This characteristic is biological and immutable (FWS1 and FWS2). Providing single and separate-sex services is lawful in a wide range of familiar situations (Schedule 3 Part 7 EqA). There are also other exceptions in relation to associations, sports, schools and so on. Having the protected characteristic of gender reassignment does not change a person’s sex or give that person the right to access opposite-sex services (FWS1 and FWS2). Transgender people are protected from discrimination in general (s.7 EqA), but not from discrimination in relation to single and separate-sex services, as long as the service provider’s conduct is a proportionate means to a legitimate aim (Schedule 3 paragraph 28 EqA). This requires clear rules (Seldon).”

Any guidance that says that a service provider can decide how to disapply a single-sex policy on a “case by case” basis, or suggests a high level of legal jeopardy when designing or operating separate-sex services, is unworkable and not in line with the law. 

You can read our whole submission here: 

Over the next few days we will be publishing the analysis on sport, data-collection, single-sex services, what “proportionate means to a legitimate aim” means, and what all of this means for enforcement of rules. 

We hope that other civil-society organisations (including those that disagree with us) will also publish their responses.