For years, women and Christians who simply stated biological reality were treated as bigots. Roger Kiska from the Christian Legal Centre reflects on the new EHRC Code of Practice and why it feels like a long overdue return to common sense.
Last week, the Equality and Human Rights Commission’s updated Code of Practice for Services, Public Functions and Associations was laid before Parliament by the Minister for Women and Equalities, Bridget Phillipson. This begun the statutory scrutiny process provided for under the Equality Act framework. If neither House resolves to reject it during a 40-day period, the Government may then make an order bringing it into force on a date to be specified.
The need for updated guidance was driven in no small part by the Supreme Court’s decision in For Women Scotland v Scottish Ministers, which clarified that, for the purposes of the Equality Act 2010, sex means biological sex. Yet the need for fresh guidance arose not only from legal uncertainty. It also reflected the reality that many public bodies and service providers had increasingly adopted approaches driven more by ideological commitments than by the statutory framework itself, often in ways that placed women’s privacy, dignity and sex-based rights in tension with, and at times subordinate to, broader theories of gender identity. The new Code therefore arrives not merely as a technical update, but as an attempt to restore legal clarity and practical guidance to an area where both have too often been absent.
It is important to understand that the Code can only clarify the law as it stands – it must accurately represent the Equality Act framework. Much of the law on issues of gender is very confused and confusing, owing ultimately to the fact that it upholds and protects false gender identities. There is a strong case for reforming the law to address these problems, but this analysis only seeks to evaluate how well the Code interprets the existing law.
And in that respect, it represents a crucial step towards upholding reality and protecting women.
Why the updated Code was necessary
Following For Women Scotland, there was an obvious and pressing need for updated guidance. The Supreme Court had resolved the foundational legal question by confirming that, for the purposes of the Equality Act 2010, sex means biological sex. That decision, however, answered only the question of legal meaning; it did not tell hospitals, schools, gyms, local authorities and other service providers how those principles were to be implemented in everyday practice. Indeed, the period immediately following For Women Scotland demonstrated that many institutions had not merely been operating in conditions of uncertainty but had developed policies influenced by ideological assumptions that often sat uneasily with the statutory framework itself. The issue was no longer simply one of abstract legal interpretation. It had become one of practical application: what did sex-based rights and single-sex provision actually require in the real world?
The first significant post-For Women Scotland decision came in Peggie v Fife Health Board. The dispute arose after Sandie Peggie, a nurse with decades of service at NHS Fife, objected to sharing female changing facilities with Dr Beth Upton, a trans-identifying male doctor who had been permitted by the Health Board to use the women’s changing room. Following an exchange between the parties and subsequent complaints, Ms Peggie was placed on leave and became the subject of an extensive disciplinary process. The tribunal ultimately dismissed most of Ms Peggie’s claims, including claims of direct and indirect discrimination and all claims against Dr Upton personally. However, it also found that NHS Fife had subjected Ms Peggie to harassment through aspects of its handling of the situation, including failures in its response after concerns had been raised. Importantly, while the tribunal did not conclude that allowing a trans-identifying male access to female facilities was inherently unlawful, it equally rejected the notion that such arrangements automatically resolved equality obligations. Instead, it pointed towards the continuing need for balancing exercises and practical accommodation.
The second significant case, Hutchison v County Durham and Darlington NHS Foundation Trust, commonly referred to as the Darlington Nurses’ case, concerned a group of female nurses who objected to being required to share changing facilities with a biological male colleague who identified as female. Unlike Peggie, which largely focused upon the employer’s response to a complaint, Hutchison directly addressed the impact of the workplace arrangements themselves. The tribunal accepted that requiring women to undress and use communal facilities in the presence of a biological male engaged issues of bodily privacy and dignity in a significant way. It recognised that objections raised by women in intimate settings could not simply be characterised as prejudice or hostility and that employers had legal obligations extending beyond a general desire to pursue inclusion. The judgment repeatedly returned to principles of privacy, dignity and reasonable objection, themes that have now appeared prominently in the revised EHRC Code.
The third matter, involving Jennifer Melle, raised a different but equally significant issue concerning the treatment of NHS staff who express views rooted in biological reality. Ms Melle, an experienced NHS nurse, was caring for a biologically male patient and convicted sex offender who identified as female but remained housed within a male prison. During the course of treatment, Ms Melle referred to the patient using male language. The evidence surrounding the incident suggested that the language used was not directed at the patient as a deliberate insult or act of hostility, nor was there evidence of an intention to demean or humiliate. Nevertheless, the incident escalated dramatically. The patient became physically aggressive and racially abusive towards Ms Melle, yet it was Ms Melle who subsequently found herself subjected to disciplinary proceedings and regulatory scrutiny. Although the matter was ultimately resolved following the withdrawal of disciplinary action and settlement of the dispute, the case raised serious questions about institutional priorities. Jennifer’s case created the impression of an NHS so focused on a particular understanding of gender identity that employees with gender critical views, and women seeking to preserve their own privacy and dignity, had increasingly come to be treated as the wrongdoers rather than as individuals expressing ordinary and traditional expectations of decency and right-mindedness. Like Peggie and Hutchison, the case exposed the practical consequences of operating without clear guidance capable of balancing competing rights and interests within the framework of the Equality Act itself.
Both the Darlington Nurses and Jennifer Melle were supported by the Christian Legal Centre.
In addition to the cases discussed above, the need for updated guidance is illustrated by the Equality and Human Rights Commission’s recent identification of 19 organisations whose single-sex space policies risked misrepresenting the law by implying an automatic right of access based upon gender self-identification. Those policies have since reportedly been withdrawn or amended. This demonstrates that the difficulty has not simply been one of legal uncertainty following For Women Scotland, but of ensuring that public bodies and service providers translate judicial clarity into lawful and workable policy. The revised Code therefore serves an important function in bringing institutional practice back into alignment with the law as interpreted by the courts.
The Code
Against that background, it is worth turning to the revised Code itself and considering what it actually says.
Chapter 13 of the revised EHRC Code is likely to become one of the most scrutinised sections of the entire document because it addresses some of the most contested issues in modern equality law, including competitive sport, single-sex services and spaces, and the interaction between sex-based rights and gender reassignment protections. Given the confusion and litigation that have followed For Women Scotland, the significance of this chapter extends beyond merely restating legal principles. It represents an attempt to provide practical guidance capable of shaping how public bodies, employers and service providers make day-to-day decisions in areas where privacy, dignity and safety concerns have too often been overshadowed by policy approaches driven more by ideology than by careful application of the law.
Sports
The revised EHRC Code begins its substantive analysis of these issues in Chapter 13 with competitive sport and, in many respects, immediately sets the tone for what follows. The Code adopts the position that sex-based sporting rules in competitive activities should generally operate on the basis of biological sex where average differences in physical strength, stamina and physique create competitive or safety disadvantages. Rather than treating these distinctions as inherently discriminatory, the Code recognises that they are capable of serving legitimate aims such as ensuring fair competition and protecting participants from avoidable risks. In practical terms, the Code recognises that equality in sport does not mean inclusivity and that fairness requires recognising relevant physical differences between men and women.
Significantly, the Code expressly acknowledges that where biological males are included within female competitive categories, women may be placed at a disadvantage and, in some circumstances, may have legal remedies available to them. The Code gives the example of a women’s running event that includes trans women and notes that female participants may potentially bring claims of indirect discrimination where inclusion places them at a particular disadvantage. The Code does, however, recognise limited exceptions where meaningful physical differences may not exist. It notes, for example, that organisers of children’s sport must consider whether differences in strength, stamina and physique are sufficiently significant at a particular age and stage of development, using the example of under-7 football to illustrate circumstances where mixed-sex sports might be appropriate.
Single-sex services
Single-sex services receive detailed treatment in Chapter 13 of the revised EHRC Code and are presented not as exceptional departures from equality law, but as long-established provisions contained within the Equality Act itself. The Code explains that service providers may lawfully provide separate-sex or single-sex services where doing so is a proportionate means of achieving a legitimate aim. Legitimate aims identified by the Code include the protection of privacy, dignity and safety, particularly in situations involving vulnerability, intimate care, communal undressing, or services connected with male violence against women. The Code therefore rejects the idea that all distinctions based upon sex are inherently suspect and instead recognises that there are circumstances in which sex-based distinctions serve an important protective function.
The Code places considerable emphasis on proportionality and practical judgment. Service providers are required to balance the benefits of maintaining a single-sex service against the impact upon those who may be excluded, while considering whether less restrictive alternatives are reasonably available. However, the Code repeatedly acknowledges that there will be circumstances where privacy and dignity considerations strongly favour maintaining sex-based boundaries. It specifically identifies situations involving undressing, limited ability to leave a setting, and services connected to male violence against women as contexts where the benefits of single-sex provision are likely to outweigh competing considerations.
The Code takes a clear position that where a provider of a legally defined single-sex service permits access on the basis of transgender identity to persons of the opposite biological sex, the service may no longer qualify as a single-sex service for the purposes of the Equality Act. In those circumstances, the provider risks losing the ability to rely upon the statutory exceptions permitting single-sex provision. The Code further warns that such arrangements may expose service providers to claims of unlawful sex discrimination from those of the opposite sex who are excluded from the service.
The revised Code adopts a robust approach to the single-sex exceptions contained within the Equality Act. The Code explains that service providers may lawfully provide separate or single-sex services where doing so pursues a legitimate aim and represents a proportionate means of achieving that aim. Legitimate aims expressly identified include protecting privacy, dignity and safety, particularly in contexts involving communal undressing, intimate care, vulnerability and services connected with male violence against women. Importantly, the proportionality exercise does not require service providers to demonstrate absolute necessity, but instead to show that there is a fair balance between the benefits of maintaining the service and the impact on those affected. Read as a whole, the Code recognises that women’s sex-based rights are not narrow or exceptional carve-outs, but substantial legal protections capable of operating across a broad range of real-world circumstances.
Equally significant is the Code’s recognition that, although the Equality Act itself employs permissive language and provides that service providers may rely upon the single-sex exceptions, those provisions cannot simply be ignored where women’s privacy, dignity or safety interests are engaged. The Code repeatedly indicates that a failure properly to consider and protect those interests may itself expose service providers to claims of direct or indirect sex discrimination, or even harassment, particularly in contexts involving communal undressing, vulnerability or intimate settings.
Perhaps nowhere does the revised Code more closely reflect recent judicial reasoning than in its treatment of single-sex spaces. Readers familiar with the Darlington Nurses’ judgment will immediately recognise the similarities. In Hutchison, the tribunal rejected the suggestion that women’s objections to undressing and using communal facilities in the presence of a biological male could simply be dismissed as prejudice or irrational discomfort. Instead, the tribunal repeatedly returned to concepts of bodily privacy, dignity and the legitimacy of reasonable objection in intimate settings. Those same themes run throughout Chapter 13 of the revised Code.
The significance of this should not be understated. For years, many women, Christians and those holding gender critical beliefs found themselves portrayed as transphobic or bigoted merely for expressing what most people would regard as ordinary expectations of decency. Women who objected to undressing in front of biological males were often characterised as exclusionary. Staff raising concerns about privacy and safeguarding were frequently treated as creating problems rather than identifying them. Yet the revised Code adopts a markedly different approach. It expressly recognises circumstances involving communal changing facilities, toilets, hospital ward settings, vulnerability, intimate care and situations connected with male violence against women as contexts in which sex-based boundaries are justified and may be necessary in order to preserve dignity and safety.
Perhaps most importantly, the Code reflects what many readers will regard as a return to ordinary common sense. The principles running through this section are strikingly similar to those recognised by the Darlington tribunal. Privacy matters. Dignity matters. Women may reasonably object to intimate spaces being shared with biological males. Those propositions are not presented as hostility towards others, nor as expressions of prejudice, but as legitimate considerations recognised by equality law itself. For many who have spent years being told that such views placed them outside respectable opinion, the Code may therefore feel less like a legal innovation and more like a long overdue acknowledgement of reality.
The Code explains that a single-sex service may be lawfully provided where doing so pursues a legitimate aim and is proportionate, provided at least one of six statutory conditions applies. These conditions are: where only one sex requires the service; where a mixed-sex service would not be sufficiently effective without an additional single-sex service; where a mixed-sex service would be less effective and demand does not justify separate provision for each sex; where the service is provided in hospitals or similar settings involving special care, supervision or attention; where the service is used by multiple people simultaneously and a woman or man might reasonably object to the presence of the opposite sex, particularly in situations involving undressing or vulnerability; and where the service involves physical contact and the provider or recipient may reasonably object if the other person is of the opposite sex. Read as a whole, these conditions demonstrate that the Equality Act envisages single-sex provision across a wide range of practical circumstances and not merely in exceptional or narrowly confined situations.
The extent to which the revised Code mirrors the reasoning in the Darlington Nurses’ judgment becomes even clearer when one looks at the examples and factors the EHRC itself identifies. In perhaps the clearest statement in the entire chapter, paragraph 13.107 expressly provides that “it is likely to be reasonable for a woman to object to the presence of a man if she will be getting undressed or in a vulnerable situation when she is using the service.” That is a remarkable statement, not because it introduces a new legal principle but because it recognises in plain terms what many women have been saying for years. Concerns about bodily privacy in intimate settings are not irrational, exclusionary or rooted in hostility. They are capable of being entirely reasonable and deserving of legal protection.
The Code goes further still when discussing the proportionality exercise required of service providers. Paragraph 13.116 specifically identifies factors including “whether women are likely to be in a state of undress,” “whether there will be limited ability for women to leave or choose an alternative service,” and “whether the service is provided as a result of, or connected with, male violence against women.” Again, readers of the Darlington Nurses’ judgment will immediately recognise the overlap. The analysis repeatedly returns to privacy, vulnerability and the realities of women’s experiences, rather than treating all access questions as abstract exercises in inclusivity.
Most strikingly of all, paragraph 13.147 expressly recognises that “a legitimate aim for excluding a trans person from a separate or single-sex service” may include preventing “discomfort or distress for other service users” and that service providers should consider whether others “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.” For many readers this may represent one of the most significant passages in the entire document. The law is not treating women’s concerns as expressions of prejudice requiring correction. It is treating them as legitimate considerations capable of legal recognition and protection.
The revised Code, however, also makes clear that the operation of lawful single-sex services does not eliminate the need to consider the position of those with the protected characteristic of gender reassignment. Consistent with the balancing exercise reflected throughout Chapter 13, service providers are reminded that they may risk claims of discrimination or harassment if individuals are left without any reasonable means of accessing facilities or services. The Code itself gives the example of a biological female who identifies as male being prohibited by her gym from using either male or female changing facilities. The Code therefore suggests that service providers consider proportionate alternatives where reasonably practicable, such as the use of a gender-neutral toilet or changing facility, in addition to male and female facilities. Once again, the emphasis is not on abandoning sex-based boundaries but on applying practical judgment to avoid unlawful behaviour under s. 7 of the Equality Act. What the Code does not clearly address, however, is the position of service providers for whom creating additional facilities is not realistically possible because of financial, spatial or operational constraints, but who nevertheless wish to preserve lawful single-sex spaces. Nor does it provide a clear answer as to when the burden of accommodation becomes disproportionate. That question will almost inevitably become an area of future litigation.
Asking about gender reassignment
The revised Code also addresses the sensitive issue of asking individuals about protected characteristics, including sex, and this is one area where the EHRC may have adopted an unnecessarily cautious approach. The Code explains that information relating to sex engages privacy rights and data protection obligations, including those arising under Article 8 of the European Convention on Human Rights and the UK GDPR framework. Accordingly, requests for information concerning a person’s sex must pursue a legitimate aim and be proportionate to that aim. The Code repeatedly emphasises that any such requests should be made sensitively, discreetly and only where genuinely necessary for operational reasons or for the lawful provision of single-sex services. Service providers may also risk allegations of harassment if such questions are approached insensitively.
Much of this is common sense. Questions concerning sex should not be used as opportunities for humiliation, confrontation or public embarrassment. The Code also makes clear that further enquiries concerning sex should arise only in unusual circumstances where there is a genuine issue regarding eligibility for a lawful single-sex service. In most ordinary situations, common sense rather than formal investigation will continue to govern how services operate in practice.
The difficulty, however, is that the Code’s discussion of data protection risks may inadvertently recreate the very uncertainty it was supposed to end. Information concerning a person’s sex does not ordinarily constitute special category data under the UK GDPR framework, and there is nothing inherently unlawful or exceptional about asking a person whether they are male or female where there is a legitimate reason for doing so. Yet the Code repeatedly approaches the issue in a manner which risks treating sex as though it carries a heightened legal status that it does not in fact possess. In doing so, it risks reinforcing a misconception that has already spread through many institutions: namely that asking straightforward questions about biological reality somehow creates unusual legal dangers. Organisations have become deeply risk-averse whenever GDPR is mentioned, often treating perceived data protection concerns less as legal obligations and more as reasons not to act at all. Rather than providing clarity, there is a risk that the repeated emphasis on GDPR will encourage exactly the kind of over-cautiousness and institutional paralysis that created so much confusion in the first place.
Even if the Code were right that information about a person’s biological sex is special category data there would be ample justification for recording it for the safety and privacy purposes outlined in the EHRC Code. As Sex Matters and Shadow Minister for Equalities Claire Coutinho both point out, the inclusion of this point appears to have its roots in Government interference.
The danger is the obvious chilling effect this may create. Service providers already operating in an atmosphere of uncertainty and fearful of litigation may conclude that enquiries concerning sex are legally hazardous even where they are entirely lawful and necessary for the operation of single-sex services. If service providers become afraid to ask legitimate questions, many of the practical protections for women which the revised Code seeks to reinforce may exist more on paper than in reality.
Importantly, the Code itself does not envisage routine challenges to service users or intrusive verification procedures. It makes clear that further enquiries concerning sex will generally arise only in unusual circumstances where there is a genuine issue regarding eligibility for a lawful single-sex service, for example where an individual declines to answer questions concerning their sex or where there are continuing grounds for concern regarding the accuracy of information provided. Even then, the Code notes the practical difficulty created by the current legal framework, observing that official documents can no longer be relied upon as definitive evidence of biological sex because passports, driving licences and, in some circumstances, birth certificates may reflect ‘acquired gender’ rather than biological reality. The Code also notes that information concerning Gender Recognition Certificates carries additional legal protections under the Gender Recognition Act 2004, including restrictions on disclosure in certain circumstances.
The Code ultimately recognises that there will be circumstances where rigid rules alone cannot resolve every situation and that service providers will be required to exercise practical judgment. Common sense should remain the governing principle. Questions concerning sex should be asked discreetly, respectfully and only where genuinely necessary. But lawful caution should not become excessive caution. The purpose of the law is not to create a climate where organisations become afraid to ask obvious and legitimate questions, but to allow practical and proportionate decisions to be made in the real world.
Conclusion
The revised EHRC Code represents something far more significant than just another piece of administrative guidance. Read alongside For Women Scotland and the Darlington Nurses judgment, it reflects a legal framework which finally recognises biological reality and applies equality law as it stands in a manner rooted in ordinary human experience and common sense.
Perhaps most encouragingly, many of the principles now appearing in Chapter 13 closely resemble the arguments advanced for years by the Christian Legal Centre and the brave, unwavering women we have supported. Privacy matters. Dignity matters. Safeguarding matters. Women should not be expected to surrender those interests in the name of inclusion. For many readers, this Code will therefore be seen not simply as guidance, but as evidence that the law is beginning once again to reflect reality and the values that ordinary people have understood all along.