Debating the EHRC Code of Practice at This Year’s TUC Congress

This year’s TUC Congress takes place in Brighton between 13-16th September. On the agenda is a motion submitted by the TUC LGBT+ Conference, opposing the Equality and Human Rights Commission (EHRC) Code of Practice.

The EHRC code refers to the Supreme Court ruling on the 2010 Equality Act, which sets out a number of characteristics that are protected from discrimination by law. The court ruled that the protected characteristic of 'sex' means 'biological sex'. The EHRC code sets out how this ruling affects situations where it is necessary to separate men from women (and girls) for reasons of dignity, equality and safety for women, for example when women are receiving intimate care, medical examinations or body searches. The code also applies in competitive sports like football and boxing, where there cannot be fairness or safety for women without separating the sexes.  It is also relevant in situations where measures are being taken to achieve equal representation of the sexes; for example, places reserved for women on public bodies, committees or delegations must be filled by biological women.

The rights of lesbians and gay men fall under the protected characteristic of ‘sexual orientation’. The rights of lesbians and gay men not to be discriminated against fall under the protected characteristic of ‘sexual orientation’ and the ruling states that the law intended 'sexual orientation' to mean a person's attraction to members of the same, opposite, or either biological sex. It accepted that lesbians and gay men are same-sex attracted – attracted only to members of the same biological sex. 

The TUC LGBT+ motion therefore raises important issues for the majority female membership of trade unions, and for lesbian and gay trade union members. In this blog we present the motion, along with some questions that TUC delegates may wish to raise at their delegation meetings or in their local branches and regional/national assemblies.

The Motion:

Motion 17 Oppose the EHRC Code of Practice (Services, Public Functions and Associations)

This Conference notes the issuing of new guidance on the implications of the Supreme Court judgement (sic) of April 2025 on Thursday 21 May 2026.

Conference unequivocally condemns the EHRC’s proposed Code of Practice as a direct attack on LGBT+ equality.

Conference believes:

1. that trans, non-binary and gender diverse people are entitled to be treated with equal dignity at work and in wider society

2. the new guidance is discriminatory and unworkable and effectively excludes trans people from swathes of public life including working life 

3. the law must be changed 

4. the Code: 

− seeks to legitimise exclusion

− erodes long-standing protections under the Equality Act 2010 and Gender Recognition Act 2004 

− represents a regressive and dangerous interpretation of the law 

− places trans, non-binary and gender no-conforming people at heightened risk of discrimination, humiliation and denial of services. 

Conference resolves to:

a. call on the TUC to campaign to introduce a process of gender self-declaration in the UK.

b. campaign so trans people have equal civil rights and justice in the workplace. 

c. Call on all affiliates to challenge exclusionary guidance. 

d. Coordinate lobbying including MP engagement and influencing the General Council.

e. Working (sic) with LGBT+ organisations to challenge the Code

Trans rights are human rights: conference calls on all affiliates to publicly, actively defend this without compromise

TUC LGBT+ Conference

Some Questions:

1.) The Supreme Court ruling is about the protected characteristic of ‘sex’ in the Equality Act. The case was about the meaning of the words ‘woman’ and ‘sex’ in the Act, so the EHRC code is about how to implement the Equality Act in relation to the court’s ruling on what ‘women’ and ‘sex’ mean. The LGBT+ Conference motion doesn’t seem to be about this.

What are the implications for women members if this motion is passed? 

  • Does opposing the Code of Practice mean that this union agrees that women should have no right to exclude men in the types of situations described above?

  • Wouldn’t this be a removal of vital, longstanding, rights of our women members? 

  • How can this be justified/explained to the female membership of this union?

2.) The motion says that the Code undermines the rights of trans people and ‘erodes long-standing protections under the Equality Act 2010 and Gender Recognition Act 2004’. If correct then it is very concerning, but is the motion accurate?

  • Didn’t the ruling of the Supreme Court assert that the protected characteristic of gender reassignment is not affected at all by the ruling and that the rights of trans people not to be discriminated against for being trans) remain?

  • Didn’t the ruling say that trans people must not be treated less favourably, but that having the protected characteristic of gender reassignment does not change anyone’s sex in law, because sex is biological, not about how people identify?

  • Isn't it important to ensure that long-standing protections for women are upheld too?

  • If the Supreme Court had agreed with the Scottish Government that possession of a Gender Recognition Certificate changed a person’s sex, then might some trans-identified people have lost important rights, such as protection against pregnancy and maternity discrimination?

3.) The motion says the Code is ‘a direct attack on LGBT+ equality’. Is this true?

  • Don’t the rights of lesbians and gay men fall under the protected characteristic of sexual orientation and isn’t biological sex pivotal to that?

  • Does this trade union disagree that lesbians and gay men are same-sex attracted, and that lesbians are female and gay men are male?

  • Didn’t the Supreme Court ruling assert that lesbian women must be allowed to meet and associate as same-sex attracted women, without the presence of biological males, if they wish to?

  • Does this motion want to overturn those rights?

4.) Does the Code of Practice apply to workplaces and working life as the motion suggests? And is the Code an ‘interpretation of the law’, as the motion says?

  • Isn’t the EHRC code aimed at associations, service providers and organisations performing public functions, to help them comply with the law?

  • Don’t employers have a duty to comply with health and safety laws, regardless of the Code, including providing suitable toilet facilities for men and women?

  • How is this code an ‘interpretation’ of the law? Surely it was the Supreme Court that interpreted and ruled on it – isn’t the Code just advising organisations on how to apply the law as clarified by the Supreme Court?

  • Won’t the EHRC code just help organisations understand and comply with their legal obligations?

Let us know if you use any of the above questions at tuwomen@filia.org.uk

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FiLiA Trade Union Women’s Network.

Miz Jakubovic