quinn.mx

Quinn's guide to the EHRC consultation

Note: This is a long one - most of it is very specific detail, but if you’re just interested in the basics of my views on this consultation, you can skip the very long section called “The questions asked”.

You probably know that the EHRC has opened the public consultation into its revisions to the “Code of practice for services, public functions and associations” in light of the ruling that declared the definition of “sex” in the Equality Act.

These revisions are statutory guidance, so they are legally required to get the public’s opinion on them. You can be sure that the enemies of trans rights will be responding en masse and you probably feel as a trans person or an ally yourself that you need to respond too.

The consultation probably feels overwhelming and there isn’t much guidance for filling it out. So I thought it important to document what I’ve found and my own opinions on the questions asked, in case it helps anyone reading this to complete their own response.

My guide is by far not the only guide you will read, and is subjective and based on my own experiences. I’d encourage you to seek out as many of these guides as you can before filling it out because each will provide a different perspective.

I haven’t included my answers verbatim. The reason is that publishing them on the internet might invalidate them, since any bot at their end that looks for copy-paste answers will likely find mine in violation of that. I’d encourage you to submit your own answers in your own words and from your own perspective.

Key facts

Here are some key things you will need to know before you start:

  1. The “Code of practice for services, public functions and associations” is an existing document that tells service providers how to apply the Equality Act to the service they provide. The consultation is about amendments to this document following the ruling mentioned above. The current version of this document (before these amendments) is available here.
  2. The ruling, if you need to consult it, is here. and the text of the Equality Act itself is here.
  3. The amendments are laid out in full at this link. They are also shown to you as you fill in the form.
  4. To respond to the consultation, you need to fill in this web form. You can save your progress at any time and a link will be emailed to you to continue your response.
  5. The form is presented as a multi-stage process - you can’t see later questions until you’ve answered earlier ones. Before you answer each question you’ll be asked whether you want to answer it - saying “No” at that point is how to skip questions you don’t have an opinion on.
  6. The questions are different whether you are answering as an individual or as an organisation. You can find both sets of questions as Word Documents at the bottom of this page. The questions I outline below are the ones for individuals.
  7. You must complete and submit your response by 30 June 2025 or it will not count!

Relation to the interim guidance

This consultation is not about the interim guidance the EHRC published on 25 April. That guidance is not statutory and employers are free to ignore it.

Most of us reading that interim guidance found it to be overreaching, unenforceable, confusing and downright transphobic.

You’ll hopefully be pleased to know that the amendments to the statutory code of practice are not nearly as overreaching, and take much more care to consider trans people and the legal implications. This is not to say it’s perfect (far from it - it’s got plenty in it that’s harmful), and it’s worth taking the time to critique the changes carefully.

While the interim guidance is not statutory, its existence will continue to cause issues for trans people. It’s acceptable to use this consultation as a place to argue against the interim guidance and for its quick withdrawal and deletion, especially after the statutory code of practice is published.

Relation to the ruling

The EHRC does not make the law. We can argue that the law is unjust, impractical and transphobic in this consultation, but the EHRC does not have the power to change the law. They do, however, have the power to provide kind and respectful guidance on how the law should be applied in practice.

It’s worth remembering what they do and don’t have the power to change as you fill out this consultation.

The questions asked

These are the questions that the consultation asks

For each of them I have provided a link to the relevant amendment to the code of practice, the questions asked and some of my notes that might be helpful in providing your response.

When the question says “To what extent”, you will be given the choice of “Strongly agree”, “Agree”, “Disagree”, “Strongly disagree”, “Do not know”.

Written answers have a limit of 1000 words each.

Questions

  1. To what extent do you agree or disagree with the following statement: “The explanation of the updated legal definition of sex is clear.”
  2. Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

Quinn’s notes

Here I say “Strongly disagree”.

The main reason I do this is because the amendments are very inconsistent with respect to how they approach this. The ruling, for all its faults, picks a term (a really bad one, “biological sex”), defines it clearly on page 7, and then sticks with it for the rest of the document.

Here, the paragraph being consulted on uses the term “legal sex” but then throughout the rest of the amendments all kinds of terms are used including “biological sex”, “sex”, “sex under the Act” and straight up “man” and “woman”.

I will advise that it is necessary to choose a neutral term like “legal sex” or “sex under the Act” and use that term consistently throughout the document.

It’s also worth mentioning that “biological sex” is not a useful term, since biologists are not in agreement about the definition of this term, or even that it is a valid term at all. It not only places intersex people at a disadvantage, it also ignores lots of research about the role biology plays in a trans person’s identity. Even if being trans is purely in the brain (current research suggests it likely isn’t), the brain is still part of our biology!

I’d also want to make a note here about how there could be more guidance explaining that the code does not suggest that this definition of sex should be used in any context other than when referring to the Equality Act; that it doesn’t try to define “man” and “woman” in any other contexts, as these are outside the scope of the code.

2.1. New content on Gender Recognition Certificates

Questions

  1. To what extent do you agree or disagree with the following statement: “The explanation of the legal rights and responsibilities set out in the new content on Gender Recognition Certificates is clear.”
  2. Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

Quinn’s notes

Here I’ll probably be saying “Agree”. The guidance is pretty good at pointing out the ways trans people are protected by the Act whether they have a GRC or not, and that the term “gender reassignment” in the Act doesn’t only apply to people with a GRC.

The one area that it is lacking is any explanation of how the new birth certificate issued when someone has a GRC will make it basically impossible for them to prove their “sex assigned at birth”. This is explored more in 2.2.8 but should be addressed here too.

2.2. New content on asking about sex at birth

Questions

  1. To what extent do you agree or disagree with the following statement: “The explanation of the legal rights and responsibilities set out in the new content on asking about sex at birth is clear.”
  2. Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

Quinn’s notes

Here I’ll probably be saying “Strongly disagree”.

It’s great that the guidance explains that requests for people to prove their “birth sex” need to be necessary and proportionate, and could be distressing for people. It’s particularly good in 2.2.6 that it points out proof is very often not needed.

However, it doesn’t provide nearly enough guidance on what might be considered necessary or proportionate, leaving this very open to interpretation. Later chapters make it clear that this can only be when using the provisions of the Act to provide single-sex services, which are not needed in the vast majority of cases. So the guidance here should be very clear that most service providers, if they do not need to provide single-sex services, would never find themselves in a situation where they need to ask someone’s “birth sex”, and could be breaking the law if they do.

The example 2.2.7 is particularly bad. It contains the phrase “The receptionist reasonably thinks that the trans woman is a biological male”. This is abhorrent and a complete overreach. This is statutory guidance that is encouraging professional service providers to guess whether women are trans or not. If service providers cannot provide a way to do this kind of questioning in a uniform way for all customers, it’s hard to say how that could be considered equal treatment under the Act’s own provisions in section 13.

I’m planning to draw attention to how utterly baffling 2.2.8 is. I know this is the way the law is worded so there’s little we can do about it, but this is effectively pointing out that the Gender Recognition Act can get you a new birth certificate, and then this birth certificate cannot be used to talk about your “birth sex” for the purpose of the Act. This makes the law unnecessarily complicated and is more evidence that the law itself is unfit for purpose and needs to be fixed.

2.3. New content on defining sex at birth

Questions

  1. To what extent do you agree or disagree with the following statement: “The explanation of the legal rights and responsibilities set out in the new content on defining sex at birth is clear.”
  2. Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

Quinn’s notes

I’ll probably say “Agree” here.

But I’ll add a note that it is confusing that the Act also uses the words “boy” and “girl” (as mentioned in 2.3.1) but the judgement only refers to “man” and “woman” (as mentioned in 2.3.2).

And also a reminder that I’m only agreeing with this subject to the strong disagreement with section 2.2 which is referred to multiple times in this section.

2.4. Updated description of the protected characteristic of sexual orientation

Questions

  1. To what extent do you agree or disagree with the following statement: “The explanation of the legal rights and responsibilities set out in the updated description of the protected characteristic of sexual orientation is clear.”
  2. Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

Quinn’s notes

Here I’ll say “Strongly disagree”. And for the following reasons:

  1. The Act section 12 does not define the terms “lesbian woman”, “gay man”, “heterosexual” or “bisexual”. These terms mean different things to different people and it is an overreach for statutory guidance to attempt to define them, rather than use the definitions in the Act itself.
  2. Paragraph 2.4.6 is a huge overreach. It says “Gender reassignment is a separate protected characteristic and unrelated to sexual orientation, despite often being grouped together (for example under the acronym ‘LGBTQ+ people’)”. This is completely untrue, as when someone has had to fix their gender assignment, their sexual orientation will naturally be referred to in reverse from the way the act protects them. A trans woman who is only attracted to women will very likely refer to herself as a lesbian, but for the purposes of the Equality Act is now described as “sexual orientation towards persons of the opposite sex” (or “persons of either sex” if she is attracted to both cis and trans women). I will be advising that paragraph 2.4.6 is deleted from the code altogether, as it has no place here and feels more like a political statement than actual legal guidance.

4.1. New example on sex discrimination by perception

Questions

  1. To what extent do you agree or disagree with the following statement: “The explanation of the legal rights and responsibilities set out in the new example on sex discrimination by perception is clear.”
  2. Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

Quinn’s notes

Here I’m planning to say “Strongly agree”.

It’s great to see this really important aspect of the way the Equality Act works highlighted using an example with a trans woman. The example is clear, it uses kind and sensitive language (for example, referring to the trans woman using she/her pronouns) and, most importantly, it shows how transmisogyny is still misogyny and is still illegal under the Equality Act.

The absence of this nuance was totally missing from the interim guidance, and that’s part of why it felt so transphobic, and it’s great to see that omission corrected here.

4.2. Removed reference to superseded caselaw

Questions

  1. To what extent do you agree or disagree with the following statement: “The explanation of the legal rights and responsibilities set out in Change 4.2 is clear.”
  2. Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

Quinn’s notes

I’m planning to say “Agree” to this. I don’t strongly agree because I don’t like anything that implies trans men are women, but they are right that that content can be deleted if the law is followed as it currently stands.

I’m also planning to note here that the Equality Act really doesn’t need to refer to “women” at all when it talks about pregnancy. It’s rare, but possible for intersex people who were assigned male at birth to get pregnant, so it’s unnecessary to refer to “women” when talking about pregnancy, when it could just as easily talk about “people”.

5.1. New example on sex discrimination - same disadvantage

Questions

  1. To what extent do you agree or disagree with the following statement: “The explanation of the legal rights and responsibilities set out in the new example on sex discrimination - same disadvantage is clear.”
  2. Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

Quinn’s notes

I’m planning to say “Strongly agree” to this. It’s great to have a clear example of how safety concerns held by cis women can also apply to trans women and that the Act still considers that to be indirect discrimination.

As an aside, this is exactly the reason why trans women still have to be allowed in women’s toilets, in many situations! But this is explored more in 13.3, so there is no need to get into it here.

Questions

  1. To what extent do you agree or disagree with the following statement: “The explanation of the legal rights and responsibilities set out in the updated example on harassment related to sex is clear.”
  2. Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

Quinn’s notes

I’m planning to say “Strongly agree” to this.

This amendment is confusing because the whole section is reproduced in full, but the new example is at 8.1.6.b. The example is another great example of how transmisogyny is still misogyny and is still harassment under the Act.

12.1. New example on women-only associations

Questions

  1. To what extent do you agree or disagree with the following statement: “The explanation of the legal rights and responsibilities set out in the new example on women-only associations is clear.”
  2. Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

Quinn’s notes

I’m planning to say “Disagree” to this.

The new example is at 12.1.3. It’s true that the law does allow women-only associations to exclude trans women, but this example should come with a caveat that this is subject to the same nuance as section 13.5. (I disagree with the guidance for 13.5 too, but I plan to explore that on the question for that section!)

This is critical because many women’s associations, including the 110-year-old Women’s Institute allow trans women to be members, and this guidance in its current form could lead them to believe that they are not following their obligations under the Act.

13.1. Updated section on competitive sport

Questions

  1. To what extent do you agree or disagree with the following statement: “The explanation of the legal rights and responsibilities set out in the updated section on competitive sport are clear.”
  2. Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

Quinn’s notes

My plan is to say “Disagree” to this.

The guidance is actually pretty good here for the most part. It says that you can’t arbitrarily exclude people from sport based on their gender - that there has to be demonstrable disadvantage for a given gender. And paragraph 13.1.6 actually says that if there are no “reasons of safety or fair competition” to exclude trans people, then it’s unlawful to exclude them.

But this is where it goes wrong - it assumes that in many cases there are such reasons. The two examples are particularly unpleasant:

  • 13.1.13 gives an example where a boxing competition for men excludes trans men (paraphrasing) “for their own safety”. There are plenty of people who would be unsafe participating in a boxing competition, with nothing to do with their gender, and this is partly why boxing has so many categories based on weight and other factors. There’s no evidence that I know of that says trans men are at more risk in boxing than cis men, purely by virtue of being trans, so this example is based on assumptions with no evidence (in direct contravention of the guidance above in 13.1.6).
  • 13.1.17 gives an example where “trans women who participate are significantly faster and have a physical advantage”. This is based on one of the greatest myths about trans competitors in sport. No one has ever been able to provide evidence that trans women have ever been - as a category - at a physical advantage over cis women in any sport. This is because the advantages that men have (some of which are hormonal, but most of which are to do with growing up in a society that favours men and gives them more sporting opportunities) are not shared by trans women, who normally have to have a hormone profile similar to those of cis women just to compete.

Until there is actually evidence that the examples in 13.1.13 and 13.1.17 are actually based on scenarios that could happen in real life, they serve to do the exact opposite of what the Equality Act sets out to do, and they are themselves in violation of the guidance in 13.1.6.

13.2. Updated section on separate and single-sex services for men and women

Questions

  1. To what extent do you agree or disagree with the following statement: “The explanation of the legal rights and responsibilities set out in the updated section on separate and single-sex services for men and women is clear.”
  2. Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

Quinn’s notes

I’m planning to say “Strongly agree” to this section. It doesn’t mention trans people at all and is clearly spelling out that you can’t have a single-sex service just because you feel like it - you have to be able to demonstrate that it is a proportionate means of achieving a legitimate aim.

13.3. New section on justification for separate and single-sex services

Questions

  1. To what extent do you agree or disagree with the following statement: “The explanation of the legal rights and responsibilities set out in the new section on justification for separate and single-sex services the clear.”
  2. Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

Quinn’s notes

I’m planning to say “Disagree” to this, although I agree with all of it until the last two paragraphs.

Paragraph 13.3.7 is especially important as it makes it clear that if you exclude trans people from facilities that match their gender identity, it could place them at such a disadvantage that they can’t use the service. And 13.3.10 says that it would normally be appropriate to provide gender-neutral facilities (they call them “mixed-sex services”) in addition to any gendered ones.

The example in 13.3.12 could do with more work because it suggests that accessible toilets are acceptable mixed-sex facilities, which they are for small places like the one in the example, but this places disabled people at a disadvantage if trans people are also made to use their facilities. Ideally it would have a counter example that shows places with lots of resources should be able to create sizable gender-neutral options in addition to their gendered ones.

Unfortunately, the law regarding toilets and changing rooms is older than the Equality Act and it is very outdated with respect to how providers are meant to split people by gender. I’m going to use this space to argue that this is unfair and disproportionate, and all places should be working towards creating safe, enclosed, gender-neutral spaces instead of arbitrarily segregating people by gender.

In my opinion, the example in 13.3.15 should be the default, not just something that is done when it is “impractical” to offer gender-segregated spaces.

Paragraph 13.3.19 is a major overreach. To say that allowing trans women into women’s spaces is “very likely” to amount to unlawful sex discrimination doesn’t seem right. It’s true that the law, as currently written, would allow cis men to use that facility (because it is no longer legally a single-sex facility), but it’s more likely that they won’t and this should be left to the best judgement of the service provider.

Paragraph 13.3.20 is also an overreach, in my opinion, but at least it says “could be” rather than “most likely”. It should say something like “in this situation, care should be taken to preserve the privacy and safety of all who use this facility in order to minimise the risk of harassment”.

13.4. New content on policies and exceptions for separate and single-sex services

Questions

  1. To what extent do you agree or disagree with the following statement: “The explanation of the legal rights and responsibilities set out in the new content on policies and exceptions for separate and single-sex services is clear.”
  2. Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

Quinn’s notes

I’m planning to say “Agree” to this. This section just makes it clear that these decisions are not obvious, despite what many transphobes say, and that providing single-sex facilities is nuanced and needs to be approached on a case-by-case basis.

I’m actually happy there are no examples in here involving trans people, even if the implication of the example could be taken as saying that we are a threat when 10-year-old boys are not.

13.5. Updated section on separate or single-sex services in relation to gender reassignment

Questions

  1. To what extent do you agree or disagree with the following statement: “The explanation of the legal rights and responsibilities set out in the updated section on separate or single-sex services in relation to gender reassignment is clear.”
  2. Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

Quinn’s notes

I’m planning to say “Strongly disagree” to this one.

Paragraph 13.5.3 is a massive overreach. I don’t tink it’s acceptable to include the phrase “very likely” in that final sentence, nor in the linked 13.3.19 (see above). I will be arguing for that last sentence of this paragraph to be removed completely. Ideally, this whole paragraph should just be a reference to 13.3.19 without making any claims of its own.

13.5.2 is good and very important, but could benefit from an example to help people understand that often it’s not OK to exclude trans people by making a service single-sex.

Paragraph 13.5.6 is really unpleasant to read, and makes it sound like how “passing” a trans person is should be a factor in deciding whether to exclude trans people. If this paragraph was written about racial or religious differences, it would be universally recognised as abhorrent: you can’t say “no black people” just because some people present are “alarmed or distressed” by the presence of black people, so why should the same not be true about trans people? I’ll be arguing very firmly for this paragraph to be completely deleted from the code.

Example 13.5.11 is factually incorrect, as not only women and trans men need gynaecological services. Indeed, many trans women who have received medical care for their transition do need the services of gynaecologists. Indeed, the Royal College of Obstetricians & Gynaecologists has a draft guideline from 3 years ago that explains why trans women would often need their services. If a more appropriate example of why trans women should be excluded from a women’s service can’t be found, this example should be deleted from the code.

Example 13.5.12 is factually fine, although it’s hard to believe many trans men would be queueing up to sue gyms for not letting them use the women’s changing room.

13.6. Updated content on communal accommodation

Questions

  1. To what extent do you agree or disagree with the following statement: “The explanation of the legal rights and responsibilities set out in the updated content on communal accommodation is clear.”
  2. Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

Quinn’s notes

I’m planning to say “Do not know” to this. It’s ludicrous that we need guidance about this kind of thing but at least it sets out that you have to be proportionate and considerate when providing single-sex accommodation, and I can’t have an opinion on it because I don’t really believe such accommodation is usually justified.

Any other feedback

Questions

  1. Do you have any other feedback about the content of the code of practice that you have not already mentioned? Include references to specific changes where relevant

Quinn’s notes

The most critical thing here for me is to point out that their abbreviation for the judgement is inappropriate. The judgement’s full title is “For Women Scotland Ltd v The Scottish Ministers 2025” and this gets abbreviated throughout the guide to “For Women Scotland”.

The name of this organisation is intentionally misleading, as it uses a dogwhistle to claim it represents the views of women as a whole when it only represents a tiny handful of people (women or otherwise) who want to restrict trans rights. If the judgement was called “English Defence League v The Scottish Ministers”, they would not be abbreviating it to “English Defence League” throughout, because everyone knows that is a euphemistic name for an organisation that espouses racist and anti-immigrant rhetoric.

I will be arguing very strongly for them to change their abbreviation throughout the guidance to something more neutral, such as “FWS v SM” or “FWS judgement”.

I also will use this space to argue that the law itself is unjust and unworkable. It puts service providers in the terrible position of having to understand the nuances of trans rights and potentially violate their clients’ privacy, and it nullifies many of the purposes of the Gender Recognition Act. It is not the job of the EHRC to amend legislation, and they will not have the power to change anything, but these consultation responses will be read by more than just the EHRC, and it’s important to make the point that the law is unfair and needs to be corrected if it is to be a true Equality Act.

Further research

There’s finally a question where you can enter your email address to be contacted for further research by the EHRC. Answer this honestly because it will not affect your consultation response.

Conclusion

In my opinion, this update to the code is far better than the interim guidance, but it contains a number of overreaches and paragraphs that are downright abhorrent and transphobic.

I plan for my response to this consultation to be measured and balanced, and to celebrate the good stuff (there is a lot of that too) while coming down hard on the bad stuff.

I also plan to push very hard for the terminology (especially the many different ways “legal sex” is referred to, and the name of the judgement itself) to be revised and for the interim guidance to be withdrawn immediately.

I’m looking forward to reading other guides and I will not submit my response for a week or so because I want to be sure I’ve sat with it and that I’ve captured everything.