EHRC Code of practice consultation
Every worker has the right to go to work and be treated respectfully and fairly and with dignity. We resist all attempts to use prejudice to divide workers and will challenge discrimination, bullying or unfair treatment that is at odds with an individual’s human rights. We make progress on equality at work and in society when we move forward together.
The TUC has consulted with affiliates and stakeholders in developing its response to this consultation. In doing so our response highlights outstanding areas where significant clarity should be provided. We expect that many of our affiliates will respond also and will provide more detailed and sector-based evidence.
Updated legal definition of sex
While the legal definition of sex as defined in the Equality Act 2010 has been clarified by the Supreme Court, there remains significant uncertainty around the practical application of this judgement. This section should reiterate that the definition of sex in this case relates specifically to the Equality Act 2010, and that individuals and organisations can continue to refer to trans women as women and trans men as men. Similarly, it could be clearer that the updated definition only applies to the Equality Act 2010, and not to other relevant UK legislation, including the GRA.
The current guidance lacks clarity, particularly in a workplace context. In the absence of updated guidance for employers, the code of practice should include multiple workplace examples of the application of the law in light of this judgement. It should also include examples of how the rights and protections of both trans people and those whose gender identity aligns with their biological sex will be impacted by the application of this judgement.
There is also a lack of clarity regarding intersex and non-binary people and their legal position in the light of this judgement which adds further uncertainty. The use of the terms biological, birth and recorded sex interchangeably also adds uncertainty as definitions and interpretations of these phrases can differ. The way in which sex can be defined at birth can change over time and in different countries so allows for further ambiguity.
The drafting of any code of practice should focus on inclusion rather than exclusion and provide advice to service providers on how they can deliver inclusive provisions for those with protected characteristics, in line with their obligations under the Equality Act 2010.
Change 2.2: New content on asking about sex at birth - organisations
While the draft provision recognises the difficulty of asking a person about their sex at birth, it is unclear how an employer would practically apply this guidance as it does not give any examples from the workplace or that would be directly relevant to the TUC or to trade unions.
There are a number of outstanding questions, including:
- If an employer is providing single-sex spaces in the workplace, to what extent can it require employees to provide information?
- How would an employer ensure a person’s privacy and data protection rights are upheld?
Examples should also be given to underline how data should be handled and at what stage an employer can ask for information relating to birth sex, and on what basis it would be reasonable for an employer to ask for this information. It is unclear how such a policy could be lawfully or practically implemented.
Trans people are not legally required to disclose their trans status, and many have legal recognition of their acquired gender under the Gender Recognition Act 2004. In addition, compelling disclosure of such information could amount to a breach of privacy rights under Article 8 of the European Convention on Human Rights, as well as data protection obligations under the Data Protection Act 2018. The Gender Recognition Act includes provisions that make it illegal for an individual or organisation to request a copy of an individual’s Gender Recognition Certificate.
Examples should caution where obtaining information on birth sex would not be seen as necessary and proportionate, particularly in the workplace context, where workplaces are also providing a service. Organisations should be cognisant of the unintended consequence of service users feeling unable to access services they need because of questions relating to their birth sex.
The guidance also refers to ‘genuine concern’ regarding accuracy of a response in relation to a question about birth sex. The guidance must clarify on what basis an employer or service provider can raise a ‘genuine concern’. Affiliates have also raised significant concerns regarding the role line managers play in applying this interpretation and the lack of appropriate time, training and guidance on this matter. This also needs to be considered carefully in light of legal protections to privacy. The current guidance feels unworkable as a birth certificate is not proof of identity, may not reflect an individual's current name and can be changed by an individual with a GRC.
In the current drafting, section 2.2.5 suggests it may be best to ‘adopt the same approach [to asking about an individual’s birth sex] with everyone’. The following example at 2.2.7 then details an example where a receptionist asks a trans woman to confirm their birth sex, without showing that the service provider is adopting the same approach to everyone. The example suggests that the receptionist ‘reasonably’ thinks that the trans woman is a biological male, and that is the basis for the question regarding her birth sex. The example doesn’t provide any detail on the basis on which that judgement is made, or on the basis it is considered reasonable.
Change 2.4: Updated description of the protected characteristic of sexual orientation - organisations
It is unclear from the content under 2.4 what effect the judgement will have on the protected characteristic of ‘sexual orientation’. Providing a legal definition of sexual orientation may prevent an individual from self-identifying in a way which feels most appropriate to them.
The definition provided does not adequately reflect the diversity of identities within the LGBT+ community. Many individuals who are attracted to people of the same sex may identify in other ways such as queer, gay women (rather than lesbians), or not use identity labels at all. This binary framing assumes cisgender identities and excludes trans and non-binary people. For example, some trans women who are attracted to women may identify as lesbians, and some non-binary people may identify as gay or bisexual. The language used in this definition risks reinforcing exclusionary norms that fail to reflect lived experiences.
The definition should be reframed to affirm that for many, sexual orientation is about who a person is attracted to regardless of gender identity, and that individuals have the right to self identify/define within that.
Under section 2.4.3 the examples given as manifestations of sexual orientation do not provide clarity; ‘These may include someone's appearance, the places they visit or the people they associate with’. These are not sufficiently clear or rooted in established case law. Without proper context, this language risks diluting protections by implying that visible stereotypes or social behaviours are prerequisites for legal recognition. There is also a danger that such phrasing could confuse discrimination based on sexual orientation with that based on gender identity. It must be stressed not to undermine the distinct protections afforded to trans people under the gender reassignment provision in the Equality Act 2010 (EA2010).
It should be made explicit that it applies solely to the Equality Act 2010, and does not limit or override individuals’ right to self-identify in wider legal, social, or institutional settings.
Furthermore, the guidance should provide examples of how this definition interacts with other UK legislation, including the Gender Recognition Act 2004, the Human Rights Act 1998, and relevant case law, to ensure consistent protection across all legal contexts.
There are outstanding questions relating to how this definition interacts with provisions provided by employers such as staff networks or associations. Examples should be provided to show how trans lesbians and gay trans men can access associations and groups.
Change 4.1: New example on sex discrimination by perception - organisations
This section could be made clearer by taking examples from the workplace.
The example provided relies on a trans woman being perceived as a biological woman, and the organisation or body not being aware of their trans status. In an employment context, this could allow for an employer to refute any allegations of less favourable treatment on the basis that they were aware of her trans status. This is particularly relevant given earlier concerns regarding an employer’s ability to ask for details of an employee's birth sex and the importance of this data being held securely. Outstanding questions remain regarding an individual’s right to privacy, as well as an employer or service provider’s changing awareness of someone’s gender reassignment status.
Change 5.1: New example on sex discrimination - same disadvantage - organisations
While the intent of the example appears to be to clarify how indirect discrimination can affect those with different protected characteristics who experience the same disadvantage, the current wording lacks clarity and creates confusion about how sex and gender reassignment protections interact under the Equality Act 2010.
The concept of “same disadvantage” is central to understanding indirect discrimination, but the example does not adequately explain how this operates in practice. It should be explicitly stated that people do not need to share the same protected characteristic to experience the same discriminatory impact.
The use of sex and gender reassignment in the same example is welcome in principle, but the explanation risks reinforcing the idea that these characteristics are fundamentally opposed/ mutually exclusive. In practice, trans people (particularly trans women and trans men) may experience discrimination based on both sex-based policies and their gender reassignment status.
Examples should make clear that someone with the protected characteristic of gender reassignment may experience indirect sex discrimination when a provision disproportionately disadvantages them in the same way it does others, even if they are not legally recognised as the same sex.
The guidance must be written in a way that supports, rather than restricts, trans inclusion under the Equality Act.
Change 8.1: Updated example on harassment related to sex - organisations
This section could be made clearer by taking examples from the workplace, particularly the obligations on employers and the consequences of where they fail to intervene when individuals face harassment.
For example, one of the examples given is of a trans woman using a gym who is mocked by male staff members. It would be useful to have a workplace example and to know how the EHRC would approach that issue. This example could also benefit from re-drafting to include mention of the mental health impact of the comments made on the trans woman, in line with the other examples in this section.
Change 12.1: New example on women-only associations - organisations
This section should be redrafted to include examples of when a single-sex space should be provided, and on what legal basis that decision should be made. This should encourage service providers and employers to carefully consider whether the provision needs to be single-sex in light of the guidance shared by the EHRC.
This section also raises issues about how the organisation “polices” membership of any single-sex spaces that are deemed necessary. Examples should be given on where the law is being followed, in terms of a decision to provide a single-sex provision and where it is not, as well as examples on how any single-sex spaces are enforced.
Can the EHRC provide additional examples that demonstrate how organisations, employers and others can operate in ways that allow and support trans-inclusion? This will be helpful for employers to consider in the context of LGBT+ networks and inclusion initiatives.
It would be useful to include full definitions of associations alongside this guidance.
Change 13.2: Updated section on separate and single-sex services for men and women - organisations
Many people access services during times of vulnerability, whether for healthcare, crisis support, or community provision. This guidance should affirm the rights of all groups and individuals to equal dignity, safety, and inclusion and encourage service providers to consider how they will meet everyone’s needs. Anything less risks violating the Public Sector Equality Duty (PSED) and the core purpose of the Equality Act 2010.
The guidance, and examples, should clarify that the purpose of single-sex measures is to remedy disadvantage, or meet a specific need where proportionate, not to police identity, and that single-sex provisions should not become a default. There must be legally robust, proportionate justification for single-sex provision. Where inclusion is the default, exclusion must meet strict legal tests, not public pressure, ideological disagreement, or assumptions about someone’s identity.
The EHRC should provide parallel advice on how employers should approach the use of single-sex and mixed-sex spaces in the workplace. This includes:
- Reiterating that employers have a legal obligation to consult with staff and recognised trade unions on any changes to workplace policies or practices that affect equality, dignity, and inclusion.
- Providing clear, practical examples of how single-sex and mixed-sex facilities can be implemented in the workplace such as changing rooms, toilets, and prayer spaces without infringing on the rights of trans and non-binary workers.
- Clarifying that the creation of trans-inclusive spaces is not in conflict with the Equality Act and can often be the most effective way of meeting legal obligations while promoting a respectful and safe working environment for all.
The EHRC should also provide clear guidance on the interaction with different protected characteristics. For example, employers or service providers seeking to use disabled facilities for trans people need to consider the appropriateness of that decision and the impact on those with other protected characteristics. Examples should be given here.
Furthermore, the guidance would benefit from additional examples that help clarify what constitutes a “proportionate means of achieving a legitimate aim” in this context. This is currently an area of confusion for many organisations and service providers.
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Examples should show when exclusion might be lawful, and when it is not, to help prevent misapplication of the law (that could lead to unlawful discrimination).
The guidance should also include practical information on how single-sex spaces are monitored or enforced, and how this interacts with an individual’s right to privacy and dignity. There is growing concern that overly strict or informal “policing” of gender in single-sex spaces could deter people from accessing services they need, out of fear of being challenged or humiliated. This must be addressed directly.
Finally, the EHRC should provide examples that demonstrate how both single-sex and trans-inclusive spaces can coexist within organisations, including workplaces, in ways that are both lawful and inclusive. This is crucial to supporting employers, service providers, and the wider public in understanding how to uphold the rights of all groups under the Equality Act.
Change 13.3: New section on justification for separate and single-sex services
As already noted, the emphasis in this section and the following sections on provision of services means that the EHRC is not providing parallel advice on how these issues should be approached in the workplace.
The example given at 13.3.12 refers to provisions of toilets. In the initial interim guidance issued by the EHRC, the guidance underlined the requirements to provide single sex spaces but failed to outline the full details in the Workplace (Health, Safety and Welfare) Regulations 1992. Regulation 20, Sanitary conveniences. Inclusion of the detail regarding the provision of separate lockable rooms containing conveniences as an appropriate provision for staff is crucial to alleviate employer concerns regarding providing single sex toilet facilities. As above, the EHRC should ensure that the rights of disabled people are not diminished by service providers and employers.
The example given states costs as an example that would justify not providing alternative provisions (13.3.13) - additional examples in a workplace context would be useful, particularly where employers face competing budgets and allocations.
At paragraph 13.3.19, the guidance suggests that it is not feasible to provide a service that is only available to women and trans women, or men and trans men, as to do so would amount to unlawful sex discrimination. Paragraph 13.3.20 raises further questions as to the application of this judgement and how an organisation, service provider or employer is to navigate this without falling foul of the law. We have concerns that the code of practice in this form, suggests employers may need to choose one form of discrimination over the risk of another, which is at odds with the legislative aims.
More detailed guidance and worked examples are required urgently.
Change 13.4: New content on policies and exceptions for separate and single-sex services - organisations
It’s crucial to ensure that any policy development is done in consultation with any recognised trade union, and in consideration of an organisations obligations under the public sector equality duty as necessary.
Change 13.5: Updated section on separate or single-sex services in relation to gender reassignment - organisations
We would like to raise concerns about the interpretation and practical implications of the guidance set out in paragraphs 13.5.3 and 13.5.7 of the draft Code.
Paragraph 13.5.3: Access to Single-Sex Services
The statement that “trans people cannot access single-sex services intended for their opposite biological sex” raises serious practical and legal concerns.
It is unclear how such a policy could be lawfully or practically implemented in most service contexts. Trans individuals are not legally required to disclose their trans status, and many have legal recognition of their acquired gender under the Gender Recognition Act 2004. In addition, compelling disclosure of such information could amount to a breach of privacy rights under Article 8 of the European Convention on Human Rights, as well as data protection obligations under the Data Protection Act 2018.
The draft guidance suggests that permitting a trans person to use services aligned with their gender identity would "very likely amount to unlawful discrimination against others.” However, this interpretation risks promoting a blanket exclusion that may itself be unlawful unless justified and proportionate in line with Schedule 3 of the Equality Act 2010.
We urge the EHRC to clarify:
- Under what specific and limited circumstances exclusion of a trans person from a single-sex service may be lawful and proportionate;
- How such a policy could be implemented without infringing on the privacy and dignity of trans individuals;
- Whether and how the presence of a Gender Recognition Certificate alters legal obligations in this context.
We also recommend that the EHRC consider including scenarios where a trans person’s inclusion in a single-sex service is fully compliant with the Equality Act, to avoid misleading interpretations of blanket exclusion.
We welcome the statement in 13.5.7 that “it is very unlikely to be proportionate to put a trans person in a position where there is no service that they are allowed to use.” However, the guidance would be significantly strengthened by providing clear examples of how employers can meet this obligation in practice.
Specifically, it would be helpful to clarify:
- The legal obligations to provide both single-sex and gender-inclusive facilities;
- Best practice for accommodating non-binary and those who may not identify with either binary category;
- The importance of consulting with trans workers, women, and their unions, when developing such policies, particularly where health and safety, dignity, or safeguarding is concerned.
Any other feedback from your organisation
In the absence of imminent guidance specifically focusing on the workplace, the content of the service code of practice could be significantly improved if there were additional workplace examples covering details on the application of this judgement. These should include issues ranging from asking an employee's birth sex, to effectively consulting with trade unions, as well as worked examples on toilet and changing provisions and the interactions with LGBT+ and women’s spaces and networks.
Examples of how proportionate use of single sex spaces can co-exist with trans-inclusive policy that ensures everyone is treated with dignity and respect are crucial. More broadly, the code of practice doesn’t currently consider the implications for non-binary and intersex people, and the interaction with workplace policies that may be impacted.
Many trans people have lived in their acquired gender for decades and do not want to have their birth sex revealed. Many are afforded legal protections under UK legislation to prevent the disclosure of this information. The code of practice as currently drafted fails to provide assurances that the application of the judgement will not infringe on an individual’s rights to privacy.
It is difficult to say with confidence which actions employers can take to ensure that they aren’t in breach of the law. We would welcome consultation on practical guidance that provides more detail specifically within the employment context as a matter of urgency.
While the judgement has significant implications for the interpretation of the Equality Act 2010, this code of practice does not address how this new definition interacts with other UK legislation. Where rights and protections are set out, for example under Health and Safety regulations, it’s crucial that these are not superseded by the application of the EA2010 definition of sex.
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