How to respond to the EHRC Consultation

Closes Monday 23:59, Monday 30 June 2025

https://www.equalityhumanrights.com/equality/equality-act-2010/codes-practice/code-practice-services-public-functions-and-associations

The Equality and Human Rights Commission [EHRC] wants to ban trans people from toilets and hospitals across the UK. By law, they are supposed to carry out an Equality Impact Assessment before they do this but they have not. Oops! But don't worry, EHRC: we've done this for you, and it looks like your proposals will be very bad but, not just for trans people but for all women.

You can help too! Whether or not you are trans, please fill in their consultation. To help you, here is a summary in 1,000 words or fewer, followed for good measure by our full Equality Impact Assessment. You can just paste it in or change it to reflect how you feel.

Status

If you don't have much time or energy:

1. Go to the survey

2. Each time you are asked “Do you want to provide feedback?” say “yes” then “strongly disagree”.

3. The question numbering is not consistent, so instead watch the progress bar at the top.

4. The final question “do you have any other feedback…” should arrive when the progress bar is around 96%.

5. For this final question, copy (or reword) the suggested feedback below

6. Don't forget to click “finish survey” to make sure it gets seen and read

Content note: analysis of mental health, neurodiversity and violent crimes including sexual assault, sometimes using dated terminology and categorisation so EHRC understands what we’re saying.

EHRC Code of practice consultation 2025: suggested responses for individuals (and legal professionals)

Do you want to provide feedback as part of this consultation?

• Yes

Suggested feedback in 1,000 words or fewer:

The EHRC failed to carry out a full, impartial equality impact assessment before drafting the guidance. If implemented, the EHRC will cause net harm equivalent to 3,000 lives, mostly to women who are not trans, and the losses will outweigh the gains by at least 10 to 1. It is therefore a grossly disproportionate response to the court ruling.

The main group harmed by the EHRC will be 4 million non-trans women and girls, who will suffer additional harm equivalent to 20,000 lifetimes.

These are the 13% of women (Castrillon-Santana & Vuong, 2007), 4 million in the UK, whose sex is commonly misclassified based on observation of their facial features, body shape and posture. The EHRC guidance as worded empowers anyone to challenge, obstruct and humiliate anyone they think might be trans, which will necessarily put at risk anyone whose sex is sometimes or always mistaken. The emotional harm caused by this harassment is likely to cause emotional harm equivalent to a moderate depressive episode, which will cause each woman to lose just under 0.4 quality of life years [QALYs] (Home Office, 2019). 4 million women x 0.4 is a net loss of 160,000 QALYs, equivalent to 2,000 women’s lives lost.

The EHRC will cause other protected groups even more disproportionate harm, for example, according to Kwate & Threadcraft (2016), observers “have difficulty correctly seeing black women’s bodies and gender presentations”. Black women are thus even more likely to have their sex misclassified, at very minimum 13% of the UK’s 1.4 million black women. That’s more than 200,000 suffering a net loss of 30,000 QALYs, equivalent to 400 black lives lost.

Lesbians will suffer disproportionately. There are 1.2 million lesbians in the UK [ONS, 2023]. Around 43% of lesbians are butch (Rosario et al, 2011), so there are at minimum 500,000 butch lesbians in the UK. Harm towards butch lesbians was estimated at 22% (Robertson et al, 2019), which means at very least 115,000 lesbians are likely to be humiliated by false challenges, causing a loss of 15,000 QALYs, equivalent to 190 lesbian lives lost.

Disabled people will disproportionately suffer too. Gilani et al (2012), women with Autism Spectrum Disorder have less feminine facial features than other women. This puts the 200,000 women in the UK with ASD (source: NICE, 2025) alone at disproportionate risk of humiliation and service denial when trying to access single-sex facilities. The EHRC will cause a net loss of at least 15,000 QALYs, equivalent to 190 disabled lives lost.

The EHRC’s proposed solution that birth certificates should be checked will not work. These 4 million women would need to carry their birth certificates almost anywhere, in case they need the toilet while out, or in case they are rushed to hospital. But this burden is all on women, which is disproportionate. Birth certificates are made of paper and will quickly fall apart. They are not secure: you may request anyone’s. They will also become valuable if your guidance goes ahead, putting women at risk of robbery.

And then there’s the impact on trans and disabled people, who will be forced to use facilities which were previously reserved for disabled people only. This will increase queues at these facilities, causing disproportionate suffering as people contract UTIs and disabled people who cannot wait instead soil themselves.

27% of trans people pass sufficiently as their acquired gender to use single sex services such as toilets or hospitals without incident. But your guidance will force them to reveal that they are trans, by visibly seeking and using alternative facilities. This is a clear loss of the human right to privacy. You are putting trans people at disproportionate risk of humiliation and harm.

And, what of the supposed benefits to the guidance? There are almost none. If Dhejne et al (2011) really did say trans women’s patterns of violent crime are similar to (non-trans) men - which the authors publicly refute, then 1.1 million attacks per year, divided between 32.8 million men and boys + 130,000 transfeminine people = one attack per 30 men, boys and trans women. Trans people make up 0.4% of this group, so, trans people are theoretically responsible for 3,300 assaults on women and girls each year. If EHRC stops these then that saves about 1,500 QALYs, the equivalent of 20 lives saved per year. But in practice, EHRC guidance empowers abusive men who are not trans to enter any single-sex service “looking for trans people,” because you gave them the excuse that trans people “must not be permitted” there. Once they are there, they will violently assault thousands of women. We estimate this harm the EHRC is inadvertently introducing will cause 3,750 extra assaults and sexism assaults, causing the loss of about 2,000 QALYs, equivalent to 25 women’s lives lost.

Overall, the EHRC guidance is unworkable and will cause grossly disproportionate suffering to hundreds of thousands of women, black people, disabled people, lesbians and trans people, of the order 10 times bigger than any benefits that might arise. 

The EHRC must abandon the proposed change and consider instead alternative options. The least harmful option given the court ruling is for EHRC to require that organisations must meet one of these criteria:

1. Provide a gender-neutral service on an equal or better basis as any single-sex service they also offer;

2. Have a policy where people have the right to choose the single-sex service where they feel safest unless they are claiming an exemption under existing provisions;

3. Require current single-sex service providers to open use to trans people. There is nothing in law to prevent a toilet, hospital ward or social club being for “women and trans people”.

(suggested responses to the other questions will follow soon)

Full Equality Impact Assessment

• The EHRC guidance will cause net harm equivalent to 3,000 people’s lives.

• Losses outweigh benefits by 10 to 1

• The majority of the losers will be women who are not trans, who will be at increased risk of assault and harassment.

• Other main losers will be disabled people, black people and trans people.

Evidence the proposed guidance will enable men to enter women’s facilities

The EHRC draft guidance could cause 1,000 extra sexual assaults on women and girls each year. The guidance as written uses the passive voice: “trans women should not be permitted to use women’s facilities”. By not saying who has the power to give or remove permission, you are inadvertently gifting power to any abusive man to enter women’s facilities by giving him the reasonable excuse he wishes to check whether someone he thinks might be trans is there. Alternative methodology: In London, women and girls reported 210 rapes and sexual assaults in public bathrooms over a ten-year period to 2023 - on average, 21 per year. London has 8.9 million people, 13% of the UK’s 68 million people (ONS 2024), so across the UK we might expect 161 reported cases per year. But reported offences are likely to represent only around 15% of the total, which means there are around 1,100 rapes and sexual assaults on women per year in public bathrooms in the UK. The EHRC guidance could easily double this.

The EHRC draft guidance could cause 2,750 extra assaults on women and girls each year. The NAO (2025) estimates that one-in-12 women and girls are assaulted each year. That’s 2.83 million. Given women are sexually assaulted 0.8 million times in all UK locations every year (ONS 2022), this means non-sexual assaults in bathrooms are likely to occur 2.5 times as often as sexual assaults, about 2,750 times per year. The EHRC guidance could easily double this.

Why birth certificates are not suitable as a means to prove sex assigned at birth

• It is unreasonable and unworkable to require everyone who might be challenged to carry a birth certificate everywhere they might need to use a toilet or go to hospital - everyone is at risk of unexpectedly needing to pee or being taken to hospital in an emergency at all times. Requiring people at risk of challenge to carry theirs will disproportionately affect people with protected characteristics, who are less likely to meet stereotypical ideas of what a woman should look like.

• Birth certificates are made of paper and are not designed to be carried everywhere.

• They are also valuable. Carrying them everywhere will increase the risk of loss or theft and consequent identity theft.

• They are in any case not reliable as a means of identification: they are considered public record, have few security features and anyone can apply for anyone else’s. 

Evidence that inappropriate challenges will disproportionately disadvantage people who share protected characteristics

Women:

• People misclassify the sex of 25% to 30% of subjects by facial features alone (Castrillon-Santana & Vuong, 2007). This decreases to 13% using other cues such as body shape and posture. There are 34 million women in the UK (ONS 2022), which puts 1.7 million women at direct risk of humiliation and denial of service by inappropriate challenges. The closest HM Treasury Green Book measure for loss of Quality of Life Years is moderate anxiety (0.133)

• People with androgynous facial features are much more likely to be classified as “male” than “female” (source: Gonzalez-Alvarez & Peña, 2022), which means that women are at a disproportionately higher risk of being inappropriately challenged for their use of women’s services than men for their use of men’s services, unless the EHRC recommends providers make services available to those who self-identity their sex.

Black people

According to Kwate & Threadcraft (2016), observers… have difficulty correctly seeing black women’s bodies and gender presentations. This puts the 1.3 million black women in the UK (source: census 2021) at disproportionate risk of humiliation and denial of service when accessing toilets and hospitals unless EHRC recommends providers make services available to those who self-identify their sex. Overall, black women are likely to be affected much more than non-black women, at absolute minimum a similar 13% rate to all women.

Butch lesbians

There are 1.2 million lesbians in the country [ONS, 2023]. Around 43% of lesbians are butch (Rosario et al, 2011), so there are at minimum 500,000 butch lesbians in the UK. Harm towards butch lesbians was estimated at 22% (Robertson et al, 2019), which means at very least 115,000 lesbians are likely to be humiliated by false challenges.

Disabled people

• According to Gilani et al (2012), women with Autism Spectrum Disorder have less feminine facial features than other women. This puts the 200,000 women in the UK with ASD (source: NICE, 2025) at disproportionate risk of humiliation when trying to access toilets and hospitals unless EHRC recommends that providers make services available to those who self-identify their gender. Given the wide intersection between neurodivergent people and disabled people, this will disproportionately disadvantage disabled people.

• According to Hosking et al (2017), disabled adults are more than twice as likely as nondisabled adults to require emergency hospital admission - 18% per year. They are therefore at least twice as likely to face humiliating questioning on admission.

• If trans people are fearful of humiliation in using single sex facilities, some will have no alternative other than using facilities intended for disabled people. This will make things worse for the 12% of disabled people who are made to wait long periods before being able to use a toilet (TUC, 2024). There are 16 million disabled people in the UK (DWP 2023), which means the proposed EHRC guidance disproportionately puts 1.9 million disabled people at risk of humiliation and urinary tract infections.

Direct impacts

• the EHRC guidance will directly cause 45,000 new incidents of harassment, 28,000 new threats of violence, 12,000 new violent assaults and 3,000 new sexual assaults on trans people: 260,000 people in the UK are trans (ONS, 2001), of whom 27% currently pass as their acquired gender sufficiently that other people do not experience discomfort sharing facilities with them (Morton 2008) - that's 70,000 people who are currently accessing services of their acquired gender without trouble. The proposed guidance says they will not be allowed to use the toilets of their acquired gender. But if they pass as their acquired gender and try to use facilities of their birth assigned gender they will also suddenly experience similar abuse risks as other trans people. 

• Trans people already experience 65% harassment in public, 40% transphobic threats, 17% physical violence and 4% sexual assault but only 15.5% report any of it (Morton 2008).The proposed plans will extend these issues to passing trans people, who until now have used the appropriate facilities without trouble but who will under EHRC guidance be forced to out themselves, either through their use of separate facilities.

• Perhaps 1 in 4 trans people will fear humiliation and violence or a lack of toilet facilities so much they stop leaving their homes regularly. Parliament buildings in England and Scotland have already responded to EHRC’s interim guidance by banning trans people from using women's toilets without providing any extra facilities: this situation will dramatically worsen if EHRC issues its full guidance as drafted. Hospitals do not have funding for special wards reserved in case trans people require care. Trans people will be denied care unless the EHRC advises service providers to accommodate trans people alongside people of their acquired gender. Overall, this will drastically reduce the quality of life of 65,000 people.

• The proposed guidance will directly cause up to 14,000 new UTIs amongst trans or disabled people. There is a vague reference in the draft guidance to denying any trans person access to single sex service, but no guidance about why or under what circumstances. If fully implemented, this will directly lead to trans people holding their bladder sometimes or often, which will increase UTIs amongst trans people to double from a 14% baseline to 27% (Vyas et al, 2015). If nondisabled trans people are forced to take up space in disabled toilets, this increased incidence of UTIs will be shared with those disabled people who are forced to wait to use facilities provisioned without extra capacity for nondisabled people.

Benefits of the guidance as worded

The proposed guidance has almost no benefits to offset against the harm it will do. 17% of women would feel uncomfortable sharing facilities with a trans woman (EHRC 2020). There are 34 million women and girls in the UK (ONS 2024). So that is 5.8 million women who would feel discomfort,

Trans women are not a threat to women. Some anti-trans activists quote the “nordic study” as estimating trans women’s patterns of violent crime as similar to non-trans men. The author of that paper has made clear this is a misreading of her work, but for now let’s assume that trans women are equally likely to be responsible for the 3,000 violent attacks against women and girls each day - that’s 1.1 million attacks per year, divided between 32.8 million men and boys + 130,000 transfeminine people = one attack per 30 men, boys and transfeminine people. Trans people make up 0.4% of this group, which means in the worst case, trans people would be responsible for 3,300 assaults on women and girls.

Legal basis

The EHRC has said it will “not officially count” any consultation responses which are about legal advice. This may well be unlawful on their part, but also you may wish to focus more on impacts than law. You might also consider whether to raise a separate complaint with EHRC about the unreasonably limited nature of their consultation.

Good Law Project FAQ: https://goodlawproject.org/resource/trans-inclusion-after-the-supreme-court-decision-faqs/

A service provider is entitled to offer a service that is inclusive of trans people, rather than segregating by sex assigned at birth, for example as positive action under s.158 of the Equality Act, which permits this where this is a proportionate means of overcoming or minimising a disadvantage suffered by trans people or meeting the specific needs of trans people or addressing low participation by trans people, for example if they are likely to feel so uncomfortable using the facilities for those of their sex recorded at birth that they are discouraged from using them.

A trans inclusive policy may be challenged by people using facilities of their birth sex but those challenges may be defended on grounds that the policy is justified as a proportionate means of achieving a legitimate aim.

You are as the law now stands the sex you are born with for the purposes of the Equality Act, your certificated sex if you have a GRC for many other legal purposes, and your lived sex for the purposes of human rights law. 

The meaning of “sex” in the Workplace (Health and Safety) Regulations 1992 and the School Premises (England) Regulations may be governed by the GRA [and not by the Equality Act]. The definition of “biological sex” does not automatically read into these regulations. Most services like toilets count as workplace toilets because they are used by staff, eg most pub toilets, even if they are also used by the public.

Acknowledgments

Thanks so much to the many experts who've trawled for evidence, peer-reviewed and supported us to produce this. And a big thanks to CoolwoodBooks.com for hosting this information. You're all amazing!