The amended Equality and Human Rights Commission Code of Practice on services, public functions, and associations was laid before Parliament yesterday. It will become law in 40 days unless Parliament acts. That window matters, and Liberal Democrats should be using it.
I have read the code carefully. The headline is this: it does not just reflect the Supreme Court’s ruling in For Women Scotland v The Scottish Ministers. It goes further, resolving almost every area of discretion against trans people and in favour of those who want to exclude them. It makes inclusion legally risky and exclusion legally safe. That is not what the law required. It is a choice the Commission made.
The Supreme Court ruled that “sex” means biological sex for the purposes of the Equality Act 2010. That ruling set certain parameters. It did not dictate how the Commission should weight trans people’s interests in the proportionality framework, how broadly to define legitimate grounds for exclusion, or how much guidance to give service providers on how to include rather than exclude. Those were judgment calls.
The most significant of them is in paragraph 13.131, which states that a service provided to “women and trans women” could amount to unlawful sex discrimination against women. An organisation that has made a principled, considered decision to include trans women in its women’s spaces now faces potential legal liability for doing so. Inclusion has been turned into a risk. The same logic applies in reverse to trans men: a man’s service that includes trans men is equally exposed. In both directions, the code makes the inclusive choice the dangerous one.
The proportionality framework for single-sex services sounds balanced in principle. Service providers weigh the benefits of a single-sex service against the harm of excluding trans people. But the legitimate aims available for exclusion include preventing “discomfort or distress” in other users, assessed by reference to whether those users “could reasonably object” to someone who “appears to be of the opposite sex.” The threshold is not harm, not complaint, not evidence. It is hypothetical discomfort, assessed by the service provider.




