Responding to EHRC’s consultation: A hierarchy of rights
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.
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.
The changes proposed by the EHRC were on consulted on through a 6-week public consultation; a timeframe that we – and many others – have voiced concerns about for being too hasty to enable meaningful consultation. When approved by parliament, the new code will have a direct impact on LGBTQ+ people, as well as organisations and service providers.
Please note, the Welsh language consultation will be open until 15 July.
An overview of Stonewall’s Approach
The consultation has now closed. In our response, Stonewall has taken a pragmatic approach, focused on asking practical questions about how the code will protect the rights and dignity of trans people; how it interacts with other pieces of guidance and legislation and what it means for organisations who are trying to provide services for everyone.
We worked closely with LGBTQ+ organisations across the sector and supported individuals, organisations and parliamentarians to respond effectively.
Apart from the length of time of the consultation - there have been a broad range of other concerns 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 additionally difficult for individuals and organisations to respond meaningfully.
A summary of Stonewall’s response
Our responses to each individual section in the consultation, drew on a range of sources. However, at the end of the consultation – the EHRC asks for an overall response to the draft code of practice. We share that below:
“Overall, this Code of Practice does not provide the clear guidance which service providers, public bodies and associations require to move forward with confidence. Balancing the needs, rights and dignity of all people, across all protected characteristics, is complex, and this Code fails to provide the clarity it promised to deliver following the uncertainty surrounding the Supreme Court judgment.
This guidance risks creating a hierarchy of rights and a tiering of safety concerns, counter to the intentions behind the Equality Act 2010.
“The ability of organisations and individuals to provide meaningful feedback on the draft Code has been significantly hampered by the insufficient duration of the consultation and the complexity of the consultation design. We remain of the view that the consultation process does not constitute meaningful engagement with affected individuals or organisations. This is deeply regrettable given that significant concerns around implementation and compliance remain.
“The proposed content does not sufficiently explain the ways in which organisations will be expected to practically comply with this guidance. It does not engage with the impracticalities of requesting birth certificates as a form of proof of sex, nor the impossibility of situations wherein trans people may be denied access to services for both men and women. Unless the Code is updated with serious revisions, organisations will face significant challenges in implementation; risk of litigation and financial costs.
Throughout this draft Code of Practice, the guidance takes the position of justifying exclusion rather than inclusion of trans people as its starting point.
“It uses examples and justifications for excluding trans people from services and associations, and makes minimal effort to meaningfully outline how organisations are able to provide services in an inclusive way. This one-sided approach to guidance risks encouraging organisations to implement blanket exclusionary policies, which will impact on trans people’s rights to non-discrimination in enjoyment of their human rights and may open up litigation risks.
“Throughout Chapter 13, the guidance makes minimal effort to address the disadvantages that trans people will face if they are forced to use services that align with their sex in its meaning under the Equality Act 2010. The guidance does not adequately explain how organisations should navigate this “balancing exercise” in practical terms so as to respect the rights of all. Part 13.5 states that trans people may “reasonably” be excluded from services that align with both their lived gender and their “sex at birth”. The guidance does not sufficiently explain how organisations should ensure trans people are not left without any appropriate services to use.
“The guidance engages insufficiently with the statutory nature of both the Equality Act 2010 and the Gender Recognition Act 2004.
The draft Code does not adequately account for the fact that a Gender Recognition Certificate (GRC) still has legal effect in many circumstances or explain the potential conflicts and contradictions that organisations will contend with given that trans people with a GRC will be one sex for the purposes of the Equality Act 2010 and the opposite for the purposes of other legislation and relevant legal contexts.
“Given the Commission’s statutory duties to protect and promote equality and human rights, the Code should meaningfully clarify that the change to the legal definition of sex is only for the purpose of the Equality Act 2010 and does not permit harassment or discrimination based on the protected characteristic of gender reassignment.
“We are also concerned that once this Code of Practice is published, businesses will have conflicting statutory guidance outlining their responsibilities to services users and to employees. The EHRC has made no indication of their intention to consult on or update the Code of Practice for Employment. It is imperative that businesses have comprehensive and coherent guidance so they can ensure relevant policies afford protection from discrimination and harassment for all employees.
“We support organisations providing services to, and employing, millions of people worldwide who remain steadfast in their committed to providing safe and inclusive spaces for everyone, including trans people. From them we hear uncertainty, frustration and disappointment about how to remain compliant with the law as represented in this Code while respecting the rights and dignity of their trans service users and staff members.
“This additional burden comes at a time of significant financial strain for businesses and public sector organisations in the UK, with many voicing concern at how to finance any changes they might need to make or legal challenges they might face in light of the legal and practical contradictions. Without serious revisions to the content of the Code, and in the absence of any assessment of the potential financial impact, the serious economic concerns raised by businesses across the economy are left unaddressed and unresolved.
"As an organisation that has long campaigned for equal rights for all LGBTQ+ people, we are incredibly concerned about the impact this guidance will have on the ability of trans people, as well as gender non-conforming LGB people, to live their lives free from harassment and discrimination.
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Next steps
The EHRC will now consider submissions to the consultation and have said it will be at least one month before they give the draft Code of Practice to the relevant Secretary of State to be approved. The draft Code will then be put before Parliament.
Unless the EHRC updates the Code with serious revisions, we are worried that the starting point will be one of exclusion of trans people rather than inclusion and that organisations will find it incredibly difficult to implement this guidance as its currently drafted. That's why we'll be working closely with Parliamentarians, and other LGBTQ+ orgs, to ensure they properly scrutinise the draft guidance, once the parliamentary process is underway.
Access support
We know that many people are worried about the impact the proposed changes could have on their lives and the lives of those they care about. If you need support, we urge you to reach out to:
