On 5 August, the Equality and Human Rights Commission’s (EHRC) new transphobic code of practice came into force. However, on that same day, the Good Law Project (GLP) announced that it would support Leigh Day solicitors and two claimants — a “trans person and a trans-inclusive organisation” — in a legal challenge to the code.
As the Canary previously reported, the code doesn’t carry legal weight in itself. Instead, it offers an interpretation of equalities law — specifically, the 2025 Supreme Court ruling that trans people should be treated as their assigned sex for the purposes of the Equality Act.
The EHRC’s interpretation encourages a nationwide bathroom ban against trans people, and their wholesale exclusion from single-sex services aligned with their lived gender. As such, in an opening salvo of their challenge, Leigh Day sent a pre-action letter to the EHRC and the government, setting out their legal argument.
In this article, we’ll take a closer look at that argument.
Trans code ‘fundamentally flawed’
In particular, the legal challenge focuses on the code’s advice that service providers should no longer operate on a trans-inclusive basis. That is to say, if the service remains open to both cis and trans women, it must also be open to cis men. Otherwise, the EHRC holds that it is “very likely” to discriminate against (cis) women.
However, Leigh Day and GLP argue that the EHRC is mistaken in the law. As the GLP explained:
an inclusive service provided to women – based on their lived gender – doesn’t directly discriminate based on “sex” (now defined as “biological sex” under the Equality Act) at all. If you exclude cis men from a trans-inclusive women’s service, it’s not because their sex was recorded as “male” at birth. This is, in fact, proven by the admission of trans women, whose sex was also recorded as “male”, but who are allowed to use the service. It is a person’s lived gender – not their “sex” under the Equality Act 2010 – which is the reason for their exclusion.
However, there’s a catch. Trans people only make up a fraction of the UK’s population. As such, most people whose sex is recorded as “male” at birth will be cis men. It follows, then, that excluding cis men from a service is more likely to discriminate against male-assigned individuals.
However, the legal challenge has an answer for this, too:
We think it’s entirely possible, depending on the circumstances, for service providers to justify offering their services on a trans-inclusive basis as a proportionate means of achieving a legitimate aim. And this has to be understood in the context that any single-sex service, which is offered on the basis of sex recorded at birth, would similarly have to be justified. The guidance makes no real room for such nuanced assessments, rendering it fundamentally flawed.
High Court ruling on interim trans code
On top of this, the EHRC code completely ignores the High Court’s ruling following the GLP’s challenge of the previous interim code.
The EHRC stated (and still holds) that any toilet that was open to trans women must also be open to cis men, or else it would likely constitute less favourable treatment on the basis of sex. However, the High Court judge argued otherwise:
In a case where the provision of separate lavatories labelled male and female was materially similar in terms of the extent of the provision, location, and so on, I consider there would, in principle, be scope for a strong argument that a rule or practice that permitted trans women to use the “female” lavatory but required other biological men to use the male lavatory would comprise different but not less favourable treatment on grounds of sex.
GLP holds that this ruling is “wholly contrary” to the EHRC’s position that such a toilet provision would be “very likely” to be discriminatory.
Given that the High Court gave its decision back in February, it’s egregious that the EHRC seems to have wholly ignored it when constructing its latest code.
Human rights violations
Along with several other more minor arguments, Leigh Day and the GLP also hold that the EHRC’s code violates human rights law. In particular, the code may violate Article 8 of the European Convention on Human Rights, which protects the right to privacy. The GLP explained that:
The landmark decision in Goodwin v UK – which led to the creation of the Gender Recognition Act 2004 – established that this right includes legal gender recognition for trans people. And the decision, despite claims to the contrary, was not just about gender markers on legal documents. It said that placing trans people in an “intermediate zone”, where they were “not quite one gender or the other” was a violation of their human rights. The court considered that “a conflict between social reality and law” places trans people in an “anomalous position”, in which they “may experience feelings of vulnerability, humiliation and anxiety”. In the two decades since, there have been numerous subsequent cases emphasising the importance of effective gender recognition for trans people.
The Supreme Court, in summary of the Goodwin v UK decision, stated that it:
puts it beyond doubt that the way in which the law and officialdom treat people who have undergone gender reassignment is no trivial matter. It has a serious impact upon their need, and their right, to live, not as a member of a “third sex”, but as the person they have become, as fully a man or fully a woman as the case may be.
Needless to say, the EHRC’s effective bathroom ban does not treat a trans man as “fully a man”, or vice versa for trans women. In fact, it does the exact opposite. Likewise, requiring that trans people use a ‘single-sex’ space which doesn’t align with their lived gender effectively outs them as trans, further violating their right to privacy.
‘In dire need of challenge’
If the court agrees, the legal challenge will ask for a “declaration of incompatibility”. Essentially, this would tell the government that it is in violation of its human rights obligations. This, in turn, would require the government to create legislation to fix its breach.
The GLP concluded with a call for solidarity:
For all the reasons outlined above, we believe that this code of practice is in dire need of challenge. But it is a challenge which can only succeed if we fight back together.
The EHRC’s code is a demonstration of the cruelty that the government will gleefully enact on any vulnerable minority, if it gets the chance. If we allow it to stand, it demonstrates clearly that no guarantee of our rights is worth the paper it’s written on.
As such, and as the GLP said, all of us must stand together in opposition to this transphobic code of practice.
Featured image via the Canary
By Grace
