How does the Equality and Human Rights Commission’s final draft affect trans people?
TransActual raises concerns that the guidance affects the whole of the LGBTQ+ community
By Aaron Sugg
Yesterday (21 May), the Equality and Human Rights Commission (EHRC) laid its final draft guidance before Parliament following the April 2025 UK Supreme Court ruling defining what it means to be a “woman”.
The Supreme Court ruled that, under the Equality Act 2010, “sex” should be interpreted in certain contexts as biological sex, leaving trans people in limbo. The Court’s ruling was made without hearing from any trans voices about their experiences, and was also deemed ‘scientifically illiterate’ by 50,000 members of the British Medical Association.
Following this ruling, the EHRC issued interim guidance explaining how organisations should apply the law to single-sex spaces. This led many public services to reconsider their policies involving trans women in settings such as toilets and changing rooms.
The Good Law Project challenged the Equality and Human Rights Commission’s interim guidance
This raised several practical questions, not only within the trans community, but also among those responsible for implementing workplace policies.
The interim guidance was later withdrawn following further review and criticism. The Good Law Project brought a legal challenge to the High Court relating to the EHRC’s guidance, arguing that its interpretation of the Equality Act 2010 was incorrect and would unlawfully affect trans people.
In February 2026, the High Court reportedly said the EHRC had not misinterpreted the law in a way that made the guidance unlawful, and that service providers could lawfully allow trans women to use women’s facilities. “Further legal analysis” was encouraged.
What does the EHRC’s final draft guidance say about trans people?
The EHRC carried out several consultations and revisions before producing updated guidance, which was formally laid before Parliament on 21 May 2026.
It should be noted that the final code of practice is not law; it is statutory guidance setting out how service providers should apply the ruling in practice. It states that single-sex spaces may, in certain circumstances, be based on biological sex, meaning trans women may be excluded from female-only spaces.
Campaigners say the EHRC’s guidance treats trans people like a “third gender”
As a result, the guidance says organisations should consider alternative options for trans people. It refers to providing a separate “third space” or gender-neutral facilities. Campaigners say this treats trans people like a “third gender”. If separate/single sex spaces exemptions are in place (such as separate sex toilets), the guidance does say that trans people should use the facility aligned with their sex as noted at birth.
On public bathrooms specifically, the guidance also states that it is “unlikely to be practical or appropriate to challenge people in ordinary toilet settings”.
TransActual raises concerns that the guidance affects the whole of the LGBTQ+ community
Trans organisations and campaigners have raised serious concerns about what this means for the future of trans rights in the UK.
TransActual said: “The newly published EHRC Code of Practice leaves trans people in the UK today with fewer rights than they had prior to last year’s Supreme Court ruling.” They added that it has not only failed to protect trans rights and “dignity”, but appears “to have weakened protections for the LGBTQ+ community as a whole.”
Gender reassignment remains a protected characteristic
Importantly, this guidance does not create any criminal law prohibiting trans people from accessing single-sex spaces such as bathrooms, and does not encourage harassment in those spaces.
Gender reassignment remains a protected characteristic under the Equality Act 2010, meaning trans people are legally protected from discrimination and harassment in all settings.
It is worth noting that no official UK record reliably proves sex as driving licenses, passports and birth certificates can all be changed to reflect a person’s true gender. It is understood that demanding proof is unlawful.
What next?
The updated guidance has 40 days to be considered by Parliament, during which amendments could be made if challenged. You can voice your concerns by writing to your MP. If there are no objections, the guidance becomes statutory.