The amended EHRC code is an attack on trans rights.
Liberals should be at the forefront of challenging it.
Gendered Intelligence have said something important in their initial response to the amended EHRC Code of Practice, and I want to build on it rather than repeat it.
They called the code “exclusionary and unnecessary.” That last word is the one I keep coming back to. Not just exclusionary, which is damaging enough. Unnecessary. The Equality and Human Rights Commission had choices here. The Supreme Court’s ruling in For Women Scotland v The Scottish Ministers set certain legal parameters. It did not dictate how widely to open the door to exclusion, how generously to interpret the justifications available to service providers, or how much weight to give trans people’s interests in the proportionality framework. Those were judgment calls. And this code resolves almost every one of them in the same direction.
I have read the code carefully. I want to be precise about what it does, because precision is what trans people deserve right now, not just outrage.
The Equality Act was designed to protect against exclusion
The Equality Act 2010 was built on a principle that most people would recognise without needing to be lawyers: that access to public life, to services, to civic participation, should not depend on who you are. The Commission’s job is to uphold that principle. Its code of practice is how it tells service providers, public authorities, and associations what the law requires of them.
What this code tells them, repeatedly and in practical terms, is that excluding trans people is the legally safe option.
Paragraph 13.131 states that a service provided to “women and trans women” could amount to unlawful sex discrimination against women. Think about what that means in practice. A leisure centre, a community organisation, a domestic violence service that has made a considered, principled decision to include trans women in its women’s spaces now faces a legal risk for doing so. Inclusion, the thing the Equality Act was designed to require, has been turned into a liability.
That is not what the Supreme Court ruling required. It is a choice the Commission has made about how to interpret the space it was given.
The incentive structure is the problem
The code sets up a proportionality framework for single-sex service decisions that sounds balanced on paper. Service providers weigh the benefits of a single-sex service against the harm to trans people of exclusion. Legitimate aims, proportionate means. This is the language of careful equality law.
But the framework is stacked. The “legitimate aim” for excluding a trans person includes preventing “discomfort or distress for other service users.” Service providers are invited to consider whether other users “could reasonably object because they are worried about sharing a single or separate-sex service with someone who appears to be of the opposite sex.” The threshold is not demonstrated harm, a concrete complaint, or any evidence of risk. It is the hypothetical discomfort of a third party, assessed by the service provider, triggered by someone’s appearance.
Every risk-averse HR department, every cautious leisure centre committee, every association seeking legal advice will be told the same thing: here is the path with legal exposure, here is the path without it. The path without it excludes trans people.
Nobody at those meetings needs to be hostile to trans people. Nobody needs to say anything cruel. The architecture does the work without them.
Non-binary people are barely in this picture
Trans-led organisations like GI have been consistent in insisting that the rights of all trans people matter, including those who don’t fit a binary framework. The code is particularly weak here, and it is not getting enough attention.
Non-binary and gender-fluid people are only protected under the code if they meet the gender reassignment definition, which requires a process of reassigning sex toward a binary endpoint. If you identify as non-binary and cannot demonstrate transition toward the opposite sex, your protection is almost entirely dependent on whether someone else perceives you as trans. It is contingent, situational, and provides no floor against systematic exclusion.
This matters because the Equality Act is supposed to protect against discrimination. An Act whose guidance leaves an entire category of people effectively unprotected is not doing what it was built to do.
The 40-day window
The code has been laid before Parliament. There are 40 days in which it can be challenged. Gendered Intelligence have said they are seeking legal advice and will give a full statement. Other organisations are doing the same. This is the right instinct. The next few weeks need to be precise and coordinated, not reactive.
A Just Society will be publishing a formal policy response. But I want to say clearly now, as part of this conversation: the argument that matters most is not just that the code is harmful, it is that it is unnecessary. The EHRC chose this. It chose to resolve ambiguity against trans people rather than in their favour. It chose to give service providers maximum permission to exclude rather than maximum guidance on how to include. Those choices can be challenged, politically and legally, on the grounds that they exceed what the law requires and contradict the purposes of the Act.
Trans people deserve the same access to public life as everyone else. A code that makes their exclusion the legally safe default is not a neutral reading of the law. It is a set of choices with consequences. And choices can be changed.
A version of this article can also be found on Lib Dem Voice
A Just Society is a liberal policy project that makes the case for radical, progressive policies grounded in liberal principles. You can read more at ajustsociety.uk.