Yesterday, 15 October, the Equality and Human Rights Commission (EHRC) took down the interim trans guidance from its website. The EHRC rushed its guidelines out in April, just days after the Supreme Court decision to interpret “sex” as purely referring to sex recorded at birth for the purposes of the Equality Act 2010.
The interim guidance told employers and service providers that they should prevent trans people from using gendered spaces and services, like public toilets. The guidance stated that this did not apply only to the services aligned with the trans person’s gender, but also the sex they were assigned at birth in some cases.
Weaponised guidance
The director of trans advocacy group TransActual, Jane Fae, said the EHRC had “gleefully weaponised” the Supreme Court’s decision:
As countless lawyers, including former Supreme Court judges lords Hale and Sumption, have pointed out: it merely defined terms in the Equality Act. What society, in the shape of the EHRC, did with that definition was then… up to society.
And, sadly, the EHRC is a body widely believed to have been stuffed with anti-trans ideologues by the last government, and, pointedly, not reformed by the current one.
The Good Law Project (GLP) is conducting an ongoing legal challenge against the interim guidance. The organisation is supporting several trans and intersex individuals who have been victimised by the temporary code. This case is set to begin in the High Court on 12 November 2025.
The GLP’s executive director, Jo Maugham, said:
I’ve spent six months talking to trans people who are afraid to go out because of the climate of fear the EHRC’s interim guidance created. Some are suicidal – and I am aware of people who have sought to take their own lives. The EHRC has finally taken it down – and my question to them is: if the High Court finds the guidance unlawful, will you apologise to those whose lives you have so profoundly harmed?
EHRC: Ask someone else
Now, in a bizarre move some six months after putting this guidance in place, the EHRC has taken it down from its website. Instead, the commission has told service providers to “take specialist legal advice”, in a complete abdication of its actual job.
Jess O’Thomson, the GLP’s trans rights lead, warned that the interim guidance may have caused organisations to break the law. O’Thomson said:
Now the guidance has been withdrawn, so should the exclusionary policies that organisations rashly implemented in its aftermath. If not, they could find themselves in hot water.
The EHRC’s current head is baroness Kwisher Falkner. She was appointed as chair of the commission by the Conservative Party in 2020. Under her lead, the equalities watchdog made a sharp U-turn towards outright transphobia.
Existing staff members at the commission branded her “transphobic,” “anti-LGBT+” and an “enemy of human rights”. The Lemkin Institute – an international organisation dedicated to opposing genocide – penned an open letter against her.
On 4 September, Falkner’s EHRC passed a 300-page document detailing its recommendations for a more permanent version of its transphobic code of practice to the Minister for Women and Equalities. However, the minister – Bridget Phillipson – hasn’t yet made the code into law. Likewise, the exact details of the new code haven’t been made public.
So what’s the law?
The lack of the interim guidance leaves only the trans-positive guidance from 2011 in place. However, in a letter to Phillipson, Falkner said:
We have been told by some organisations that they intend to continue using this now unlawful code until the revised code is published, therefore allowing practices inconsistent with the law to persist.
Our updated code of practice accurately reflects the law and is informed by the two public consultations we ran to ensure it is as clear as possible.
She also added that:
The updated code ought to be brought into force as soon as possible. How quickly this happens is now in the government’s hands. We urge them to act at speed.
However, the government has stated that it hasn’t yet implemented the new code because the EHRC has failed to do its job. A Whitehall source said:
Unfortunately this looks like the EHRC deflecting – they still haven’t sent ministers the information they’ve requested in order to assess the draft code. The EHRC should be cracking on with their job, not giving lectures on timing while government still awaits their material.
According to reporting from the Guardian, this missing information includes an equalities impact assessment. You know, the document laying out whether a group which has a protected characteristic – like trans people – might be discriminated against by the new laws.
Even in the ‘gender-critical’ fantasy land which believes that trans rights always take away from women’s rights, it’s got to be hard to pretend that banning trans people from both men’s and women’s spaces is anything other than outright bigotry. Sure, they’ll try — but that’s a feat of rank hypocrisy that even Falkner seems to have balked at.
Featured image by Delia Giandeini on Unsplash
This post was originally published on Canary.