A Trans Perspective on the New EHRC Guidance

by Noah Kay

Well, here we are again folks. In April I wrote about the effects of the 2025 Supreme Court ruling on the definition of a woman. A month later, and the blows keep coming.

If you only do one thing this week, make it this: https://www.translegalclinic.com/post/how-to-contact-your-mp-about-the-ehrc-guidance

The updated EHRC code of practice on how to approach trans inclusion was released last week, following the Good Law Project’s challenging of its first draft on legal grounds in April.

There has since been a lot of confusion and conflicting information on what it actually means and how it will affect trans people. 

The Good Law Project has released a comprehensive article explaining both the Code and what it will mean, so I highly recommend giving that a read. 

They note that while some of the most harmful elements have been removed from the earlier draft, such as the suggestion of checking people's birth certificates before they could use a toilet, the protection for trans people is just not good enough. 

The new code essentially segregates trans people to a 'third sex' by recommending a separate third space, as if segregation is the answer. Not to mention the logistical challenges for organisations where a suitable “third space” may not be easily available. In places where no third spaces are easily available, trans people may be forced to use the accessible toilets, which will also have an impact on disabled people, a problem compounded by the fact that there is usually only one accessible stall in the first place. 

And while a lot of focus has been on the bathroom and changing room bans, the impact is actually far greater. Trans peoples’ access to a huge range of vital services will be impacted, including healthcare, housing, and domestic violence shelters. I’m sure I don’t need to tell you why this is so devastating, and so important for us at Lotus to highlight.

In the middle of all this debate, something keeps getting lost: trans people are being made to carry the weight of yet more public speculation about whether we are worthy of public life.

Yes, the code technically still protects trans people from discrimination. 

But legal protection on paper and what actually happens to a trans person standing in a changing room, or being questioned at the door of a service, or reading another headline about whether they should be allowed to exist in public are not the same. 

It just determines who theoretically wins in court, if it ever even reaches the courts. And most trans people do not have the resources to go through such a difficult and dehumanising process, especially after what could well be a traumatic experience.

As we saw with the original guidance, organisations such as Girl Guides rushed to  implement trans-exclusionary policies and the impact on trans people was immediate and devastating.

The trans community is hurting right now. We’ve been hurting. Constantly being the subject of public debate, transphobic rhetoric being pushed into more mainstream channels  and new policies and legal frameworks being introduced that erode our rights seemingly every week is exhausting. And terrifying. In fact, the UK, which used to be at the top of the ILGA list for most LGBTQ+ inclusive country in Europe, has now fallen into 22nd place. 

These stakes are not to be taken lightly. Trans people, and trans women in particular, are already at significantly higher risk of sexual violence and abuse than the general population. 

Legislation and legal guidance like this has real world, devastating effects. It emboldens transphobes, gives them a sense of "permission", to harm some of the most vulnerable people in our society, knowing it will likely go unpunished. Even having a third space creates an easy target for violence and harassment on the trans people using it, and potentially forcing trans people to out themselves just to go to the toilet.

We have already seen a rise in transphobic attacks in the past several years, and this is only likely to increase.

People claim that this debate is about protecting women and girls, but erase the fact that trans women are also women who deserve protection. And trans men and non-binary people are not safe either.  In fact, neither are cis women, women of colour, disabled women - any woman, or indeed person that could be seen as gender non-conforming, or not performing their assigned gender to the “correct” standard are at risk of being targeted too. Although the impact on cis people should not be the only or largest motivating factor to care about trans lives.

Trans men who do pass may be forced into the women’s facilities just because of their sex assigned at birth, opening them up to more harassment and violence, while non-passing trans and nonbinary people will face attacks wherever they go.

If you have trans people in your life, now is the time to support them.

Not to explain the legal nuance to them. Not to reassure them it'll be fine. Just to ask how they are, and how you can help, and actually listen. Show up. Send the message you've been meaning to send. Being an ally isn't a label you earn once, it's something you continually practice, especially when things get rough.

And it doesn't stop there. The trans community needs more than just individual kindness right now. We need people willing to show up collectively. Donate to trans-led organisations, including those doing the legal work that is actively pushing back on this. Contact your MP about this. Get involved in your local community. Speak up in the conversations happening around you: at work, in your family group chat, wherever you have a voice. Push back on the framing that treats trans lives as a policy problem to be solved. 

We have been fighting this fight for a long time, and we are tired. But we are still here. We will always be here, no matter how hard they try to erase us. We deserve to live. And we won’t stop fighting for that.

MPs have 40 days to challenge this before it becomes law. Contact your MP with this template: https://www.translegalclinic.com/post/how-to-contact-your-mp-about-the-ehrc-guidance