By John O’Brien (Cumbria Green Party Executive Member) and Glenda O’Brien (member of the Labour Party and the Socialist Health Association).
The Equality and Human Rights Commission has just laid a draft Code of Practice before Parliament. It sounds serious. It sounds like it knows what it’s doing. But when you actually read what it’s asking service providers to do, the whole thing falls apart.
The code tells service providers to exclude people from single sex spaces based on their birth sex. That’s the headline. That sounds straightforward until you realise something fundamental: the Gender Recognition Act 2004 already dealt with this. Section 9(1) of the GRA is crystal clear.
When someone gets a Gender Recognition Certificate, their sex is changed ‘for all purposes.’ All purposes. Not most. Not some. All. So what the EHRC is actually doing is telling the country that the Gender Recognition Act doesn’t mean what it says. That a GRC is real for tax purposes, real for marriage, real for state documentation, but not real when someone wants to use a toilet. That’s not a code of practice; that’s a contradiction.
Here’s the actual problem: A woman gets her Gender Recognition Certificate. She gets a new birth certificate. She is now, legally, a woman – for every purpose. She gets married as a woman. She pays tax as a woman. She’s listed as a woman in every government database. Then she tries to use the female toilet. And the EHRC code tells the staff member behind the counter that she’s not supposed to be there, not because of how she looks, not because of what she’s wearing, but because of what her birth certificate said thirty years ago.
Now flip it. A man gets his GRC and a new birth certificate. He is legally male for all purposes. It’s the same situation. The code tells him he has to use the female toilet because that’s what he was assigned at birth. The EHRC code doesn’t care that he’s legally recognised as a man. The law says he’s a man. The GRA says he’s a man. The new code says he’s not a man – not in a toilet, anyway. This isn’t about protecting anyone. This is about the code making the GRA legally meaningless. It fragments the law itself. It says you can be one sex for every other purpose but not for this one. That’s not how law works. That’s not how it should work.
In fact, the guidance for trans men is even worse than that. While banning trans men from the spaces of so-called “biological men”, it also says that trans men who look masculine can be excluded from women’s facilities! So trans men could be banned from peeing anywhere, unless they can find a disabled toilet or a rare gender neutral one!
And then there’s the practical nightmare: service providers can’t actually enforce this. They can’t ask for birth certificates at the door. They can’t demand proof of someone’s sex. So what do they do? They rely on what the person looks like, on how they sound, on whether they match someone’s idea of what a man or woman should look like. That means every person who doesn’t fit a narrow box gets questioned – the woman with short hair; the man with long hair; the woman with a deeper voice; the man with a softer one.
Everyone becomes a suspect
Everyone gets scrutinised. Everyone becomes a suspect. Cisgender people get caught in exactly the same net as transgender people, just because they don’t conform to appearance stereotypes. And the staff have to do this policing. They’re retail workers. They’re hospitality staff. They’re NHS employees. They’re not border guards. They shouldn’t be deciding who is or isn’t allowed in a space based on their perception of someone’s appearance. That’s exhausting work. It’s invasive. It’s demeaning to everyone involved.
Full details of the lobby here
It gets worse: there is the human rights angle. Article 8 of the European Convention on Human Rights protects your right to privacy; your dignity; the right to be left alone about your body and your sex. The code forces staff to make inquiries, to visually assess and to make decisions about whether you belong. That’s an invasion of privacy. It’s exactly what Article 8 is supposed to protect against. The courts have already said this matters. Goodwin v. United Kingdom (2002) established that treating someone according to their birth sex after they’ve obtained legal recognition is a breach of their human rights. The EHRC code would cement exactly that breach.
And don’t forget disabled people. The code suggests that service providers use disabled toilets, accessible changing rooms, and gender neutral facilities as a workaround. That’s not a solution. That’s dumping the problem onto disabled people. Those facilities exist for them. They’re not a catch all for everyone the code wants to exclude from sex segregated spaces. You’re not solving a transgender access issue. You’re creating a disabled access crisis.
So what does the Green Party need to do? Parliament has 40 days to review this code. The Green Party should use that window. Working with supportive Labour MPs and other MPs who support the rights of trans people, it should table an Early Day Motion (EDM) to make it clear that the code creates a legal fiction incompatible with the Gender Recognition Act. They should demand that the government explain how service providers are supposed to enforce this without relying on invasive questioning. They should insist on a proper impact assessment that includes the views of disabled people, transgender people, and the workers who’d actually have to do the policing.
Ultimately, if the law itself needs altering to restore the rights that trans people enjoyed before the Supreme Court Judgement of April 2025, then so be it. Maximum pressure should be brought to bear on the Labour government to change the law, working with trans organisations and with the trade unions, almost all of which have clear policy of supporting trans people’s rights.
The EHRC code isn’t clarity. It’s contradiction. It fragments the law. It invites discrimination against everyone who doesn’t fit appearance stereotypes. It breaches human rights law. And it treats disabled people’s facilities as a dumping ground. The Green Party was founded on the principle that equality is not a trade-off. That human rights matter. That dignity matters. This code undermines all three. Parliament should vote it down.
[Subnotes: Trans Solidarity Alliance are building a mass lobby of MPs, planned in Parliament for Thursday 25th June in Westminster as there is the 40 day window closing on the 30th June.]
[Featured image – demonstration in London against the Supreme Court judgement – May 2025. Photo – Left Horizons]
