The EHRC’s Statutory Guidance and the UK Supreme Court ruling

The UK Supreme Court judgment on 16 April 2025 ruled the legal definition of a ‘woman’ for the purposes of the Equality Act 2010 is based on biological sex, leaving many trans people feeling deeply worried and uncertain. Many organisations and service providers are unsure about what this means for them.  

The judgment specifically refers to people with Gender Recognition Certificate (GRC), who have legally changed their sex in the UK. There are 9,000 trans people with a GRC in the UK. 

Following the ruling, the Equality and Human Rights Commission (EHRC) proposed changes to the ‘Code of Practice for Services, Public Functions and Associations’. This code outlines the steps that service providers should take to make sure that people with protected characteristics are not discriminated against.  

Current status 

It is important to note that trans people, with and without a GRC, are still protected from discrimination and harassment under the law – the Equality Act 2010.   

Any statutory Code of Practice must clearly explain how this protection works in practice and provide examples to support inclusion in line with the law. 

We urge organisations to act with caution until the new guidance is approved. Organisations do not need to make changes until the new guidance is finalised. 

Our concerns about the consultation 

The changes to the code of practice proposed by the EHRC were consulted on through a six week public consultation. This was a timeframe that we – and many others – voiced concerns about -  for being too hasty to enable meaningful consultation.  

There were also other concerns raised about the process - one of them being that the full draft code was not published for consultation. Instead, the EHRC published sections that they thought were relevant making it more difficult for individuals and organisations to respond meaningfully.  

We worked closely with LGBTQ+ organisations across the sector and supported individuals, organisations and parliamentarians to respond effectively.  

There were over 50,000 responses to the consultation. Many of these responses will have raised complicated legislative and practical questions. Ensuring that these responses are meaningfully considered would take the EHRC a considerable amount of time. 

Parliamentary process 

The EHRC is reviewing all the responses that have been submitted as part of the consultation. The EHRC will then submit the draft Code of Practice to the relevant Secretary of State. Once reviewed by Government lawyers and approved by the Secretary of State, the draft Code will then be laid before Parliament; at which point parliamentarians will have 40 days in which to raise objections to the draft code before it is signed into law.  

If a ‘resolution to disapprove’ the draft code is passed in either House during the 40 days, the draft code cannot be issued by the EHRC and signed into law. If the 40-day period concludes without Parliament passing a resolution to disapprove, the draft code becomes new statutory guidance. 

Scrutiny is crucial 

Unless the EHRC updates the draft Code that was consulted upon with serious revisions, we are worried that the starting point will be one of exclusion of trans people rather than inclusion. We also worry that organisations will find it incredibly difficult to implement this guidance as its currently drafted.  

That's why we are working closely with Parliamentarians, and other LGBTQ+ organisations to ensure the draft guidance is properly scrutinised once the parliamentary process is underway.   

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