It’s Pride Month in the United Kingdom, but trans people are facing third-space segregation from public services in the wake of the release of the new EHRC Code of Practice. Under a Labour government led by a Prime Minister who prides himself on having been a human rights lawyer, the Equality and Human Rights Commission has taken the fundamental right to equal participation in public space away from trans people. How did this happen?
Following the Supreme Court judgement in For Women Scotland of April 2025, the EHRC set about updating its Code of Practice on the interpretation of the Equality Act 2010, as it applies to service providers, public functions and associations. The judgement redefined the protected characteristic of ‘sex’ under the EA2010 to only mean only sex assigned at birth, or ‘biological sex’, in the words of the Court. This prompted the EHRC to produce a Code of Practice which rewrote the policy on single-sex spaces (such as bathrooms or hospital wards) to mean that they should only be occupied by people of the same assigned sex; as well as redefining who can be a member of a single-sex association.
This presents the obvious problems for trans people: where can you go, when you have to go? Can you use the changing rooms at the gym or the swimming pool? Are you allowed to participate in sports clubs? Perhaps most importantly, how will you be treated when you require medical care? Being placed on the wrong hospital ward for your gender is a breach of your dignity and privacy – but waiting for a private room to open up has a demonstrably negative effect on treatment outcomes, even unto patients dying while under medical treatment.
Although the EHRC Code of Practice is a civil document, and statutory guidance rather than a piece of law unto itself, it has provoked intense fear and distress among the trans community over the likely consequences of its implementation. In particular, the section of the Code which requires single-sex spaces contains provisions wherein a service provider may – if it is a proportionate means to the legitimate aim of keeping the space single-sex – challenge a person to reveal their assigned sex. If the service provider does not agree that the answer they are given fulfils the sexed nature of the service, they are able to bar the person from using the service.
This seems like a self-evident breach of trans people’s rights to privacy – indeed the Code itself recognises that Article 8 ECHR is engaged with regard to this kind of data. As far back as the case of Goodwin v UK in 2002, the European Court of Human Rights acknowledged that trans people should not be left to live in an ‘intermediate zone’ between sexes/genders. But in disallowing them from using the correctly gendered spaces, and forcing them into the wrong space or a segregated, third, gender-neutral space, that is exactly what the Code of Practice is doing.
However, I argue that it goes further than this, breaching not just the right to privacy but the right to the public. If you cannot use the correct facilities and thereby must choose segregation or the potential for violence or neglect, if you will be misgendered daily from birth to death, you cannot be said to be participating in the world on the same basis as cis people.
Eric A. Stanley, following Fanon, uses the concept of ‘near life’ to articulate this almostness, this almost-being, among queer and trans people. Near life articulates the impossibility of being-in-the-world for queer and trans people – the acts of specific violence against trans people, which combine with the ‘rhythms of restriction’ enacted by social forces against them. For Stanley, near life names ‘a form of (non)subjectivity that resides adjacent to the fully possessed rights-bearing subject of modernity’. They catalogue violences which happen alongside a purported atmosphere of LGBTQ+ inclusion by the state, a terrible juxtaposition of rights rhetoric and dark reality.
This is the UK right now, for trans people: the country which boasts that it will hold an international IDAHOT+ summit next year, but will not let a trans woman lie in a hospital ward next to a cis woman. The country where agreeing that trans people are not who they say they are is practically a shibboleth for access to the corridors of power.
This year’s ILGA Rainbow Map of Europe placed the UK near the bottom with regard to trans rights, stating that after For Women Scotland, there is effectively no longer a legal gender recognition system in the jurisdiction.
The UK isn’t celebrating Pride Month this year. Rather, it should hang its head in shame.
Sandra Duffy Golden is Lecturer in Law at the University of Bristol Law School and Co-Chair of the University of Bristol LGBTQ+ Staff Network.
Moral panics and legal projects: echoes of Section 28 in United Kingdom transgender discourse and law reform by Sandra Duffy is available to read open access in the Gender and Justice on Bristol University Press Digital.
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