8. Is the EHRC implementing the Act in ways never intended?

 

Not only did the Supreme Court judges form an anomalous judgment that sided with gender-critical feminists, and set itself outside the original contexts and the expressed understanding of the law that was drafted in 2010, which did indeed include trans women as women - in law, in its language, in its intent…

But after the judgment, the EHRC then amplified the ruling, making general what should only have been exceptional cases of differentiation. Many critics now say this was over-reach. The divergence from the context, intent, and purposes of the Equality Act, its Notes, and its original Code of Practice seem so blatant as to suggest that the Code drafted - 15 years after the original Code - by the EHRC may have been ideologically motivated and driven.

As explained in Section 7 of this site, the Equality Act was aligned to the existing Gender Recognition Act, in classifying trans women as women, and trans men as men, deploying pronouns like 'she', 'her', for trans women, and 'he', 'him' when referring to trans men who had 'changed sex' to better match their authentic gender identity. Both laws respected that.

However in 2025 and 2026 the EHRC has reflected the exclusionary rhetoric of pressure groups who wanted to deny that trans women were women at all, even though the law said that in many cases they were. It then set out on a very driven course to amplify and some would say to effectively 'weaponise' the very contended retrospective reframing by the Supreme Court, to claim that as trans women were 'men' (entirely contrary to what the Equality Act itself says) they should be excluded from almost all women's spaces… an exclusion completely at odds with the 2010 Act which said that any restrictions should be exceptional.

The haste with which the EHRC tried to push these exclusions through, and their suggestion in an early interview that trans women (for example) could use the men's toilets - at huge danger to trans women - gave the impression to critics that it was partisan and party to the agenda of gender-critical feminists. In short, a concern that they were ideologically driven to extract trans women from female spaces in society and deny their reality - in law - as the women they legally were.

In short, they hijacked a single (highly contended) ruling and extended it into a universal statement of exclusion, in complete contradiction of the 2004 law, the real context of the 2010 law, and quite contrary to the original Code of Practice of 15 years before which upheld the far more inclusive understandings of that Equality Act.

The Code started in 2025 appeared to impose universal exclusions on almost all women's organisations, extending hard-line restrictions (based on genitals) upon a plethora of groups and contexts that had nothing to do with genitals at all. This reeked to many of ideology and bias, deploying gender-critical narratives that were no part of the original Equality Act at all.

This 'agenda' of the EHRC (far beyond anything the Supreme Court called for) seemed to concerned parties to lack responsibility and adequate care for the impact and damage it would cause, not only on trans people's ordinary lives, but on businesses and organisations that were operating with trans inclusion before (in line with the original Act and the original EHRC advice to businesses in 2011).

Such generalisation around genitalia (no part of the Act's original intent) ironically may also risk challenge of cisgender women who choose to present or express themselves in 'masculine-associated' style or manner. This, as has been argued, may lead to some of them being challenged in women's spaces. Yet, these spaces have operated peacefully for decades - because trans men and women are as decent as anyone else.

This peaceful operation was known and accommodated at the time of the Equality Act. No effort was made by the legislators to frame trans women as anything other than 'women' for the purposes of things such as toilets, membership of groups like the Women's Institute, and thousands of other women's organisations from which they may now be excluded. It simply wasn't the intention of the Act.

In the EHRC's almost blanket restrictions there seemed to critics to be a reckless abandonment of proportionality (the Act's own touchstone). Fifteen years before, the legislators never intended such disproportionate ousting of trans women from their legitimate places in society as women, and trans men as men. The restrictions seemed out of all proportion to what the Act ever intended.

Inclusion had been a fundamental principle of the Act in 2010. Indeed, the EHRC's original Code, a few months after the Act was passed, reflecting the intentions of the Act at the time, states (13:5) "If a service provider provides single or separate sex services for women and men, they should treat transsexual people according to the gender role in which they present."

They had access to check with legislators. They were far closer to understand the pulse and intentions of the law. So their guidance, backing up the Act's identification of trans women as women, stated there is "No need to exclude transwomen from a changing room if it has separate cubicles." That was the understanding, at the time, and it could be strongly argued that excluding trans women from cubicled toilets was not envisaged. Indeed the Cameron government made that clear.

The Government Equalities Office issued guidance in 2015 that followed the spirit of the Equality Act. It advised:

"A trans person should be free to select the facilities (such as toilets or changing rooms) appropriate to the gender in which they present. For example, when a trans person starts to live in their acquired gender on a full-time basis they should be afforded the right to use the facilities appropriate to their acquired gender." As an example, they add: "The pub allows all trans customers access to the toilets appropriate to the sex in which they present."

This inclusive approach to trans people had already been reflected in the EHRC document 'What Equality Law means for your Business" (published in 2011):

"Generally, a business which is providing separate services or single-sex services should treat a transsexual person according to the sex in which the transsexual person presents (as opposed to the sex recorded at birth)." (page 17)

Such inclusion was proportionate. As the original EHRC Code 15 years ago stated (13:59), explaining the original purposes of the Act: "The denial of a service to a transsexual person should only occur in exceptional circumstances."

That emphasis on proportionality seems far from the blanket Code of 15 years later which has tried to impose an exclusion far and wide, in a way that seems vastly disproportionate and doctrinaire. It's certainly does not seem to many to be what the Equality Act intended.

Indeed, it may be fair to argue that the actions of the EHRC have been brutal in their consequences, harm and loss for trans people in the UK, out of step not only with the Acts of 2004 and 2010, but out of step with good practice in many other countries, and out of step with the need to treat a tiny minority with dignity and respect.

To fully see what is happening, the programmed stigmatisation of trans people has to be seen in its full context: the convergence of those who oppose even the concept of transition - the religious conservatives, the gender-critical sub-branch of feminism, the right-wing (often financially sponsored) politicians using trans people to drive divisions, the conservative news media - all seeking to lock out trans people, to vilify them, to portray them as 'fake'. By weaponising rare and individual incidents by bad players who can be found in any group, they portray all decent trans people as threat, when in fact they need protection as much as anyone else. But in a 'race to the bottom' these populist voices have the effect of subverting trans people's lives - and even their very identities - so that the thug or hater on the street feels empowered and vindicated to carry out threats and abuse. It is a deteriorating situation.

These are the real contexts within which the EHRC of the past year has been operating, and those who drafted the Equality Act would have been horrified.