GIRES Submission to the EHRC Consultation
The EHRC launched a consultation to gather the views of individuals, legal professionals and organisations on the proposed updates to the Code of Practice, following the Supreme Court’s judgement on For Women Scotland vs. The Scottish Ministers. The EHRC have stated that they will consider every response.
GIRES Submission to the EHRC Consultation
Information about the Consultation
The EHRC’s Code of Practice is primary guidance for employers, sporting bodies, schools, services open to the public (e.g. hospitals, restaurants, shops, refuges, pubs) and other groups to interpret their obligations under the Equality Act 2010.
We agree with Liberty, Liberty launches legal action against EHRC over ‘unlawful’ Code of practice consultation, other trans organisations and 33 labour MPs who have written to Baroness Falkner, that the 6-week consultation period fell far too short for a measured response. The High Court ruling in the case of Clifford vs. The Secretary of State for Work and Pensions ruled that any consultation focused on a vulnerable group should be 12 weeks long. The ruling stated that the, DWP consultation on disability benefits that was 8 weeks, did not provide “adequate time to consider, take advice upon and respond to the proposals’.
Following the completion of the consultation, the CoP will be amended where deemed necessary. The EHRC has stated that they aim to provide the updated Code of Practice to the Minister for Women and Equalities for ministerial approval in the summer, ahead of the full draft Code being laid in Parliament after the summer recess. If approved, it acquires statutory status: it becomes law.
The EHRC previously published interim guidance on the 25th April 2025 (roughly a week after the UKSC delivered their judgement on the 16th). We found some of the content troubling, in particular:
- 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, as this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex
- in some circumstances, the law also allows trans women (biological men) not to be permitted to use the men’s facilities, and trans men (biological women) not to be permitted to use the women’s facilities
In essence, this implies that the EHRC is suggesting there are circumstances where transgender people are not permitted to use gendered facilities of any sort. While they do then state that ‘where possible, mixed-sex […] spaces’ should also be provided, we do not endorse this as a substitute for permitting transgender people to use facilities congruent to their identified gender.
Challenges to the Interim Guidance
The Good Law Project challenged the EHRC interim guidance, raising two main points. First, the EHRC was wrong to say employers need to provide gendered toilets. This led to the EHRC changing its guidance. Second, that it is permissible to provide trans inclusive men’s and women’s toilets (and indeed other facilities). They are bringing the challenge together with a trans woman, a trans man and someone who is intersex. The High Court has granted them anonymity. GLP Director, Jo Maugham’s witness statement explains why anonymity is so important for trans people who want to access the law.
What can you do now?
The best way for trans+ voices to be heard is to ensure that those hearing them are our elected representatives, to motivate action and meld individual striving into collective action. As such, one of the most important thing you can do right now is to write a letter to your MP. Prof Stephen Whittle has written an excellent guide for doing this on TransLucent: https://translucent.org.uk/a-guide-to-how-to-write-a-letter-to-parliament
Our MPs are best equipped to represent their constituents when they’re armed with facts and understand from a human perspective why certain issues are important.
Nobody is more equipped to explain this than transgender people themselves, either by sending a letter (electronic or physical) or meeting them in person.
With that in mind, we encourage everyone to read the letter TransActual has written to the Prime Minister, which raises many important points worth considering and, together with Prof Whittle’s advise, should provide the foundations to help you frame your concerns to your MP: