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UK and European law has started from the premise that trans people exist since at least 1999. The European Court of Human Rights decided in 2002 that it was “no longer sustainable” for trans people to not be treated as one gender or the other. The court demanded that the UK provide a route for trans people to be legally recognised in the gender they lived in, which led to the Gender Recognition Act in 2004.
The Equality Act in 2010 equalised protections across the board, and carried across the rulings which had amended the Sex Discrimination Act to include trans people, creating the characteristic of “gender reassignment” (which didn’t sound so clumsy at the time). The definition was basically someone who was, had or was intending to undergo a process to reassign their sex.
Fast forward to the current day. In April 2025, despite all of the evidence to the contrary, the UK’s Supreme Court ruled that “sex” in the Equality Act meant an undefined “biological sex”, which was really an attempt to rule trans people out from protection against direct discrimination under their lived in sex. Protections against indirect discrimination and discrimination through perception appear to have survived.
The change in the law led to the EHRC revising its Codes of Practice. These are not law but provide a level of defence for organisations being sued if they can show they followed the relevant Code. The latest version for service providers was presented to Parliament on 21 May and will be automatically accepted at some point in July unless Parliament votes it down – and there’s not necessarily any opportunity for any such vote.
‘This EHRC Code Will Make the UK a Hostile Environment for Trans People’
Keir Starmer’s Government promises trans people ‘dignity and respect’ but is overseeing a colossal failure to protect their rights and safety, argues Helen Belcher
On Tuesday 8 June, the Chair of the EHRC, Dr Mary-Ann Stephenson, and the CEO, John Fitzpatrick, appeared in Parliament before a joint session of the Women and Equalities Committee and the Joint Committee on Human Rights – an opportunity for MPs to ask questions about the Code, which they did. Stephenson and Fitzpatrick were there to defend a position which quickly became apparent was very difficult to defend.
The position the UK now is in is driven by two big basic lies. The first is that the Equality Act was actually an act which excluded trans people from single-sex services and spaces aligned to their lived in gender but that the courts, Parliament or the EHRC, had somehow not noticed this until last year. The second lie is that trans people are always identifiable, and when they aren’t, they’re intentionally deceptive. And it was ultimately those two lies that Stephenson and Fitzpatrick kept falling back upon.
For example, Christine Jardine MP asked how she could prove her “biological sex”. After all, if you’re going to rely on enforcing legal protections in court, you need to provide evidence and proof of your claim. Stephenson didn’t, couldn’t, answer the question about proof. Apparently it’s common sense – which happens to be the only definition the Supreme Court gave.
When pushed further, Stephenson had said that “we have operated for decades with legislation that has allowed for single-sex services, and we have managed to deliver those very effectively.” Jardine’s subsequent question, why change it then, was left unanswered. But, of course, that’s one of the killer arguments. If trans inclusion was working, and the extremely small number of complaints about trans inclusion over many years supported by Stephenson’s remark seems to indicate strongly that it was, then why now go through all this upheaval?
A little later, Stephenson said that they weren’t going to enforce toilet policing, but that people who had concerns about someone else being in a space should ask to speak with the manager. This smacks of vigilantism. It’s not the EHRC or the Government doing it. Instead they’ve outsourced this to busy-bodies, some of whom are very likely to be anti-trans. It’s not entirely clear how the manager is supposed to decide.
Stephenson, though, admitted the second lie. You can always tell if someone is trans –“as soon as they open their mouths to say something”, or there’ll be something that “catches a glimpse out of the corner of their eye”. Yet, at the same time, according to Stephenson, this apparently wasn’t about stereotypes.
Kevin McKenna MP asked questions about how NHS England was supposed to enable this. This wasn’t really answered either. Instead there was a vague legal threat from Fitzpatrick – if the EHRC detected that the NHS wasn’t excluding trans people from single sex wards, then they would be likely to take court action. Sports bodies were also threatened this way by Fitzpatrick.
Stephenson strongly suggested we’re supposed to pity the EHRC. They don’t make the law. Their duty is only to interpret it, and that’s what they’ve done. Except their duty is also to defend human rights and to flag to the Government whether any new law results in a breach of human rights – as Fitzpatrick acknowledged twice in the hearing. They apparently couldn’t see any conflict.
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Stephenson repeated the line from her predecessor Chair, Baroness Falkner, that it was reasonable that trans people no longer had protection under Article 8 of the European Commission on Human Rights. Given that Strasbourg repeatedly rules in favour of trans people using Article 8, this is a surprising and probably indefensible line.
Another question from Peter Swallow MP extracted the answer that it remained acceptable under the Code for women to take their ten-year-old sons into the women’s facilities without compromising the status of those spaces. No one asked the question about male workmen or cleaners. Supposedly the moment a trans woman uses them, the status of those facilities is apparently compromised, but no one should police those facilities, but people can complain and the management may be threatened with legal action if they don’t pursue exclusionary polices, but this is nothing to do with the EHRC.
So almost two and half hours of deflection, obfuscation, evading the question, but almost always landing on one of the two big lies, with a couple of legal threats and encouragements for vigilantes thrown in.
It’s perhaps unsurprising that, within 24 hours of the hearing ending, McKenna, the Committee’s Chair, Sarah Owen MP, and other attendees signed the motion that Parliament should withdraw the Code. They clearly thought that the EHRC’s position was indefensible.
Whether sufficient momentum will build to kill this Code is debatable. What this exercise does do, however, is show clearly the distortions and evasions those who wish to enforce exclusion have to go through, and also raise questions about a government, a Labour Government no less, which thought this Code was in any way acceptable, let alone practical.
As the quote goes, “one deceit needs many others, and so the whole house is built in the air and must soon come to the ground.” For our human rights regulator to assist in those deceits is shameful beyond belief. And the damage that is already happening to the lives of innocent trans people, their families and friends, is enormous.