Summary
Translucent Response to the EHRC Draft Code of Practice (2026) -the 2026 EHRC Draft Code of Practice exceeds its legal mandate by introducing unworkable "single-sex" rules, creating unlawful conditions for protected status, and failing to address serious safeguarding risks.
Translucent Response to the EHRC Draft Code of Practice (2026)
The Equality and Human Rights Commission (EHRC) Draft Code of Practice has been published.
While presented as a technical update to reflect the Supreme Court’s judgment in For Women Scotland (FWS), our detailed legal analysis reveals that the Commission has exceeded its mandate, introducing technical errors, internal inconsistencies, and significant legal omissions that will harm trans people and mislead service providers.
- Unlawful Conditions on Protected Status
The Draft Code attempts to rewrite the Equality Act 2010 (EA 2010) by stealth.
Paragraph 2.46 introduces extra-statutory requirements for “permanence” and “consistency of presentation” before a person can be considered protected under the characteristic of gender reassignment.
This directly contradicts Section 7 of the EA 2010, which protects individuals from the moment they “propose” to undergo transition. These new conditions could encourage service providers to unlawfully challenge the protected status of trans people who are early in their transition.
- The “Binary Trap” and the Discrimination Gap
The Code asserts that including a single trans woman in a women-only service is “very likely” to constitute unlawful sex discrimination against non-trans men refused access to the service.
This is a sweeping legal assertion made without any analysis of what amounts to “discrimination”. As noted in the Good Law Project judgment, excluding a man from a service not designed for him may not constitute the “less favourable treatment” required for a legal claim.
Furthermore, the Code creates an unworkable “Binary Trap”. It suggests that if a provider includes a trans person, they lose their single-sex status entirely.
This forces essential services (like NHS hospital wards and domestic violence refuges) into an impossible choice between total exclusion of trans people or losing their separate-sex protections, a result that is practically unworkable due to costs and regulatory constraints and may lead to a reduction in the number of women-only services overall.
- Dangerous Omissions: Disability and Safeguarding
The EHRC has fundamentally failed to address the intersection of gender dysphoria and disability law. Many trans people meet the EA 2010 threshold for disability, triggering a positive duty for providers to make reasonable adjustments. The Draft Code is silent on these parallel obligations, risking a situation where providers inadvertently commit disability discrimination while following the EHRC’s exclusion guidance.
Critically, the Code ignores the EHRC’s own Equality Impact Assessment (EIA) regarding safeguarding. The EIA warns that forcing trans women to use male-only services places them at a “disproportionate risk of violence and sexual assault”. By failing to incorporate this known risk into its proportionality guidance, the EHRC is encouraging service providers to conduct legally deficient assessments.
- Privacy and Data Protection Failures
The Code’s guidance on verifying a person’s sex creates a concrete operational gap regarding UK GDPR. Trans status is special-category health data, yet the Code fails to alert providers to the heightened obligations involved in processing such information. This risks encouraging the “policing of gender presentation,” which the government’s EIA admits will likely lead to increased harassment for both trans people and cisgender women who do not conform to traditional feminine stereotypes.
- A Failure of Public Duty
The government’s own EIA concludes that the Draft Code will have negative impacts on trans people across all three limbs of the Public Sector Equality Duty (PSED). Proceeding to lay the Code before Parliament despite acknowledging these harms, and admitting that proposed mitigations (like “third-space” provision) are often financially impossible, is a potential failure of the Minister’s duty to have “due regard” to equality.
Translucent Response to the EHRC Draft Code of Practice (2026) – Our Call to Action
This Code is not a neutral statement of law; it is an exclusionary framework that ignores retained protections established by the Supreme Court.
We saw a 40% surge in suicidal crisis calls to the Samaritans as a result of FWS judgment.
As it stands, this Code must not be permitted to be implemented, as its own impact assessments admit it will cause harm.
TransLucent asks that the government delay the commencement of this Code until these legal errors, human rights abuses and omissions are addressed.
Translucent Response to the EHRC Draft Code of Practice (2026)
