On Tuesday 16th June Sex Matters will be in the High Court for a judicial-review hearing. Our claim is against the National Police Chiefs’ Council (NPCC) and the chief constable of British Transport Police (BTP), and concerns guidance both have issued regarding strip searches performed on trans-identifying detainees. The secretary of state for the Home Office is named as an interested party.

Our argument is that both NPCC’s and BTP’s guidance is unlawful because it permits a detainee to be strip-searched by an officer of the opposite sex on the basis that both the detainee and officer “consent” to this. The Police and Criminal Evidence Act 1984 (PACE), the primary legislation setting out police powers in England and Wales, specifies that any search that goes beyond the removal of outerwear must be carried out by someone of the same sex.

The story so far

In late 2024 Sex Matters brought its first judicial review against BTP. That case related to guidance permitting officers with gender-recognition certificates (GRCs) to search detainees of the opposite (biological) sex, on the basis that a GRC changed a person’s sex for the purposes of PACE. That action was stayed (paused) by the High Court pending the decision of the Supreme Court in For Women Scotland v The Scottish Ministers (FWS) – although FWS concerned whether a GRC changed a person’s sex specifically for the purposes of the Equality Act specifically, it was expected that the reasoning in the judgment might shed light on whether it should or shouldn’t be understood as changing a person’s sex in PACE. After the judgment was handed down BTP withdrew its guidance. Our claim was therefore withdrawn by consent and BTP was ordered to make a contribution to our costs.

BTP then issued new guidance, as did the NPCC, which is an umbrella body that produces guidance and model policies for all police forces. These guidance documents still allowed for opposite-sex searching, albeit with different parameters. This time GRCs played no part in decision-making; instead trans-identifying detainees could request that they be searched by someone of the opposite sex. If such an officer could be found who was willing to carry out the search, it would proceed on the basis that both parties consented to it. If no officer could be found the detainee would be kept under continuous watch or be searched per PACE by someone of the same sex. We applied to take a fresh legal challenge, and in January of this year we were granted permission.

“Searching will be completed in line with biological sex however there will be times where a consensual search is agreed, and both the officer and the detainee give consent to the search.”

NPCC Interim guidance – Searching by transgender officers and employees of the police and the searching of transgender detainees

“… a detained person may consent to be searched outside the statutory requirement that the sex of the person searching is of the same biological sex as the person being searched, i.e. where the detained person indicates a preference to be searched by an officer of a biological sex in contradiction of the requirements of statutory powers. The person must be capable of giving consent and consent should not be sought if the person is deemed unfit through drink or drugs or does not have the relevant mental capacity to decide this.”

BTP interim guidance – Transgender and Non-Binary Search Guidance

We think that both documents breach Section 54 (Searches of detained persons) of PACE.

PACE aims to balance police forces’ need to investigate and prevent crime with citizens’ rights and freedoms. Section 54 of PACE gives police the legal power to search someone who is arrested. That power is usually exercised during detention at a police station, but in some circumstances searches take place elsewhere.

Sub-section (9) of PACE states that:

“The constable carrying out a search shall be of the same sex as the person searched”.

We argue that this is unequivocal and provides the only basis for lawful searching. We disagree that there is any power at common law for a police officer to search a detainee by consent.

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Why this case matters

Searches under PACE are lawful if they fall within the permitted parameters; consent is not at issue. This protects officers as well as detainees. We think permitting opposite-sex searches outside PACE puts officers (of both sexes) in legal jeopardy if they search someone who later claims their consent was not valid.

We also think opposite-sex searching harms women, both those conducting such searches and those subjected to them. Under this guidance, male police officers are able to carry out strip searches of women with a trans identity. That such women must “consent” is not a meaningful safeguard: we do not accept that consent can meaningfully be given by a person who is detained. Women in contact with the police are on average extremely vulnerable. A high proportion have been in care, suffer from mental-health or addiction problems, or have experienced domestic or sexual abuse or trauma.

The growing cohort of trans-identifying girls and young women are also known to suffer disproportionately from mental-health issues. If one is detained she may request to be searched by a man because that is “gender affirming”, only to find the search traumatising and later come to view what happened as a violation. That she has “consented” does not remove the risk of serious harms, as is clear from the recent shocking case of a mentally ill trans-identifying woman who was held in a male psychiatric ward because that aligned with her “gender identity”, only to be raped within an hour.

In a witness statement provided in support of our claim, Maya Forstater, Sex Matters’ chief executive, writes:

“Taken together, the extreme vulnerability of female detainees, the recognised greater trauma done to women by being strip searched and the existence of this new cohort of young trans-identifying women mean it is necessary to consider the impact of the revised policies on female detainees who identify as trans. The officers we spoke to expressed fears that such women might request to be searched by male officers because they feel that to do otherwise would be to invalidate their trans identities.”

The guidance hands male detainees who have an erotic interest in cross-dressing, or who get a sexual thrill from exposing themselves in front of women or simply enjoy humiliating and intimidating women, an easy way to do so inside the custody suite. In her witness statement, Maya quotes serving police officers who explain how the possibility of being searched by a female officer will inevitably be exploited by some male detainees.

“The officers we interviewed emphasised that some members of the public are routinely deeply sexist and unpleasant towards female officers and staff members. The female officers said that it is extremely common for men to make sexualised remarks and insults, to suggest that they must be lesbians, to make rape threats, to pretend to believe that a female officer is a stripper performing in police uniform, to say they would like to be handcuffed or frisked by the officer, to say that she ‘needs a good shag’ or to make lewd suggestions that she is having sex with her male colleagues. This happens more to younger (and therefore on average less experienced) female officers.

“They emphasised that especially when it comes to searching, detention or custody situations, the people they interact with are not typical of their demographic among the general public. One said: ‘they’re far more likely to be violent against our officers, [seek to] humiliate our officers. They dislike police and they will do anything they can to harm us.’ All said that they expected that a policy that gave any man requiring a strip search the opportunity to ask for it to be performed by a female officer would be rapidly and widely misused for criminal and sexual purposes.”

The burden of opposite-sex searching will fall disproportionately on female officers because of the demographics of both police forces and those detained by police. Female officers are in a minority in all police forces, and men make up the great majority of detainees in general, and almost all of those detained for violent or sexual crimes.

The NPCC’s guidance states that female officers will not have to search trans-identifying men if they do not want to, and that if they refuse they will suffer no career detriment. But as Catherine Larkman, a retired senior police officer and the national policing lead for the Women’s Rights Network, explains in another witness statement, such safeguards are completely insufficient.

“A detainee requiring [a strip search] cannot be housed in a cell safely, without the search first taking place and any items that they may use to harm themselves or others, or any evidential items, being located and removed. The teams that carry out these searches are often not large. A female officer or staff member who feels uncomfortable at searching a male detainee, would be unlikely to refuse to carry out a search. She would likely hide her discomfort and unease and carry out the search, in order to avoid inconvenience to her colleagues, or being seen as a troublemaker. She may also be very conscious that, if she refused, another female colleague would then be asked to carry out the search instead of her.

“The disciplined nature of the police service and the prevailing culture within, is also a factor in an unlikely refusal to search. Policing is a public service role, and officers and staff are subject to a discipline code and standards of professional behaviour, including a requirement to treat others fairly and without discrimination. Officers and staff are conscious of the necessity not to breach these standards. They are also conscious of the demands on their own colleagues and the pressure to work effectively as part of a team. Standing out as the weak link on a team where risk and discomfort are to be expected, is not desirable. A refusal to carry out a search in an environment, where time, efficiency and safety are of the essence would be felt adversely.”

The question for the court

At the heart of this hearing is a simple question: are consensual opposite-sex strip searches in breach of the same-sex statutory duty imposed by s.54(9) of PACE or is there an additional common-law power to search by consent?

If the court agrees with Sex Matters that opposite-sex strip searches cannot be permitted by consent, then we request that the court declare that the guidance is unlawful. Our aim in bringing the case is to require that NPCC, BTP and by extension all police forces in Britain ensure their searching guidance complies with PACE.

Witness statement of Maya Forstater

Witness statement of Catherine Larkman

Help us to stop abusive police searching policies

The City of London Corporation has decided to continue with its “trans inclusive” approach to admissions to the men’s and women’s ponds on Hampstead Heath. Chris Hayward, policy chair of the City of London, said that the decision would bring “certainty” and a “clear plan for the future”. However, some members of the Hampstead Heath, Highgate Wood and Queen’s Park Committee and the Policy and Resources Committee seemed less convinced and asked if they could review the policy again in July if anything changed in the meantime. Michael Cogher, a solicitor for the City, and Katie Stewart, its executive director for environment, reassured them that they could.

Sex Matters’ legal challenge is set to go ahead, with a hearing at the Royal Courts of Justice listed for 3rd and 4th November.

The decision to approve the policy was made in a meeting of the Policy and Resources Committee on Thursday 4th June, chaired by Hayward. He told the assembled members: “I am aware of the strength of feeling on both sides.” Stewart guided members towards voting for option two: “retaining the current trans-inclusive operation of the men’s and ladies’ pond”, alongside the introduction of “a clear access policy” and commitments to spend up to a million pounds to improve the changing and showering facilities at the three ponds.

The committee members had been given a private briefing the day before, but they appeared confused about the “clear access policy” they were being asked to agree to. What exactly does the City of London mean by “trans woman” and “trans man”? Everyone seemed too embarrassed to ask this question clearly, despite the legal and financial risk they were being asked to accept.

Ann Holmes, the City’s “chief commoner” – a role that involves acting as an ambassador for the organisation at ceremonial occasions and working to uphold the rights and privileges of the organisation’s elected members – thought that the new code of practice from the Equality and Human Rights Commission (EHRC) was “new legislation” and that the committee might need to consider it in a month’s time. She pointed to the legal definition of the protected characteristic of gender reassignment in the Equality Act and said:

“That definition seems to me to be very clear and very limited in who is properly regarded as having that characteristic. But when you read through the report, it seems to be saying we have no way of knowing this. We have no way of monitoring that. Basically, if somebody comes in and says I am a woman, we have to accept that. And I wonder how that actually fits with the recommendations we’re making?”

Steve Goodman, Labour Party member for Aldersgate, said that, in his view:

“If we are going to have a Ladies’ Pond, then that should be for biological women only.”

But he also said:

“If they’ve got a gender-reassignment certificate, I don’t see why anyone would have an issue about them swimming in the women’s pond. But if they haven’t, then I think it will continue to create difficulty for our staff at the ponds who should be uppermost in our mind.”

Deputy Caroline Haines said that she had been reassured that “if we continue with the same provision that we have, then we are best protected by law”. She concluded that option two is “really the only reasonable option”.

Brendan Barns, the chair of the culture, heritage and libraries committee, said he strongly supported option two, partly on the basis of the consultation but also because “the current arrangements have been in place for almost a decade, and there is only one documented incident”.

The lack of documented incidents may reflect the City’s policy of not recognising incidents because it does not recognise biological sex. Author Amanda Craig described her experience in an article in The Telegraph published on 6th June:

“I emerged from a cubicle into the small, cramped changing rooms at the Ladies’ Pond one hot summer’s day for a swim, I was astounded to find a big hairy man, genitals clearly intact, parading around.

I shot out at once, and when I told one of the pool lifeguards – tough, no-nonsense women who had fearsome reputations among generations of North London teenage boys silly enough to try and invade the ponds as a dare – I expected them to be up in arms, or call the police. No such luck.

‘There’s nothing we can do,’ I was told. ‘It’s policy to allow trans women.’

‘But this is a man. You can see he’s a man.’

The lifeguard grimaced.

‘If they claim to be a woman, we can’t do anything.’”

Alderman Vincent Keaveney had read the EHRC guidance and was concerned that it suggests the City’s preferred policy would “very likely” amount to unlawful sex discrimination against people of the opposite sex who were not allowed to use a service, and that a mixed-sex service must be open to all service users. He asked:

“If we adopt option two as recommended, are we then able to continue to maintain men’s and women’s ponds as we currently maintain them with the distinction? With that trans-inclusive policy that we’ve adopted, will we ultimately have to open the ponds to men and women alike and trans men and trans women alike?”

Councillor Goodman and Henry Colthurst, the chair of the finance committee, argued that the City should “follow the case law”. But this caution was swept away, as the committee voted in favour of gender self-ID.

Stewart told them that enforcing rules based on sex was out of the question because “there is very little way in which you can do that in a dignified way”. She said that under option two “staff will use common sense” to decide which men to allow in and which to exclude.

Florence Keelson-Anfu, the chair of the HR committee, asked for “a separate paper to maybe come back to corporate services on how we’re going to protect our staff”, focusing on verbal abuse they might receive.

Is this lawful?

The committee went into closed session to hear answers to their queries about whether this “common sense” approach is lawful. It also received a short paper on the legal implications arising from the EHRC draft code of practice on services, which gives a clue to the answers they would have been given in private by City solicitor Michael Cogher. It fails to define the basic contraventions related to sex discrimination and harassment and sexual harassment in the Equality Act, or to make sure that the committee members fully understood the risk they were being asked to take by instructing their staff to use “common sense” to exclude most men from a service, but to admit some men (and call them women) and to allow those men to undress with women and girls who have been told it is a female-only space. None of this can be solved by building a few more cubicles.

The City of London’s argument in the legal paper is that:

“A trans-inclusive service may not amount to direct sex discrimination, since the exclusion would be based on lived gender, not sex.”

“Moreover, even if the provision of a trans-inclusive service would otherwise amount to unlawful sex discrimination, such discrimination will not be unlawful if the service-provider lawfully applies the positive action provisions under section 158 of the 2010 Act.”

We look forward to testing these arguments in court.

Who will pay the bill?

There was much discussion of where the £1 million for building works for new cubicles and other refurbishments would come from: the City of London’s contingency funds or the budget already allocated to the charity that runs Hampstead Heath (of which the City of London is the sole trustee).

Alderman Henry Colthurst, who signs off the Hampstead Heath charity’s annual accounts, warned against the City continuing to underwrite the charity’s costs with a blank cheque. It makes the City a sitting duck for unplanned expenses, he said. “I just think we need to be very alive to the impact of having these deficit-funded charities on our books because we are making ourselves look pretty stupid.”

No one representing the governing body for London’t financial centre mentioned the legal and financial risk of directing staff to implement a policy which defies the Supreme Court and which the EHRC says is “very likely” to result in potential liability for mass sex discrimination.

All staff that work on behalf of the Hampstead Heath charity are employed by the City Corporation. As the Equality Act makes clear at Section 109(1):

“Anything done by a person (A) in the course of A’s employment must be treated as also done by the employer.”

Several of the City councillors were rightly concerned about the welfare of their staff. But this didn’t seem to extend to carefully considering the legal risk they are placing them under. Employees are personally liable for unlawful discrimination and harassment that they commit by implementing their employer’s policies (even if the employer is also liable). Section 110 (3) gives employees a get-out clause if they rely on a statement by the employer “that doing that thing is not a contravention of this Act” and it is reasonable for them to have trusted the statement.

If City of London bosses are confident that they understand their legal responsibilities and are concerned for the welfare of the lifeguards, constabulary officers and other staff on Hampstead Heath, they should make a statement reassuring them that the policy does not instruct them to contravene the Equality Act.

Chris Hayward, Alderman Colthurst and their colleagues should pay particular attention to Section 110 (4) of the Equality Act, which establishes that if they ”knowingly or recklessly” make such a statement and it is “false or misleading in a material respect”, they will have committed a criminal act.

Where is the EHRC?

The City of London has spent a lot of time and money avoiding complying with the law. We will see it in court in November, unless it backs down. But it really shouldn’t be this hard for a group of well-paid, responsible professionals from the nation’s financial centre to understand the Equality Act, which covers businesses of all sizes.

The EHRC could help resolve this issue now, simply and cheaply. It could send the City of London’s Policy and Resources Committee a letter explaining that the policy to which the committee has agreed will very probably result in staff contravening the Equality Act in fundamental ways, and that it would, in the regulator’s view, be false and misleading to reassure them otherwise. The EHRC could also explain to the City of London that if it operates the ponds as separate-sex services, under Schedule 3 Part 7 (that is, based on biological sex) then it will not be instructing its staff to contravene the law.

It should publish this letter to make clear that any statement to the contrary by the City of London, its political leaders or senior executives would be both reckless and knowing. This might focus the minds of the members of the Policy and Resources Committee when it next meets on 9th July on the risks it is signing up to accept, instead of continuing to distract themselves with building plans for cubicles.

Keep the women's pond for women!

Maya speaking in the River Room at the House of Lords

On 4th June we launched our new sport report, Getting back on track: Using the Equality Act to enable and protect sport for women and girls, in the River Room at the House of Lords. We co-hosted the event with the Women’s Sports Union, and guests came from across the sports world, including chairs and chief executives of national governing bodies, sportswomen, journalists, policy-makers and lawyers.

The event was introduced by Baroness Davies of Devonport, aka Sharron Davies MBE.

The report describes the battle for fair sport for women and girls: how the law has been misunderstood and misrepresented by activists demanding access for trans-identifying men to women’s sport, and by a succession of civil servants and sport policy-makers who wrongly presented this as “inclusion”. It explains how protections for women and girls in sport are threaded through the Equality Act, and why female-only sport and recreation aren’t just desirable, they’re necessary.

I have spent years working on sports policy, first at Fair Play For Women and now at Sex Matters. In that time I have had hundreds of conversations with politicians, officials, athletes and funders, and have heard every excuse imaginable for failing to protect the female category for girls and women.

The big message I hope everyone takes from this report is that sports leaders need to stop looking for compromises and get-out clauses to validate a few trans-identifying men and get back to protecting, celebrating and promoting women and girls in sport – not just because that’s what the law says, but because it is the right thing to do.

Fiona

Fiona, Maya and Helen celebrating the launch of Getting back on track with Louie French MP, the shadow minister for culture, media and sport.

Getting back on track: a new report

In this week’s episode, Maya Forstater and Fiona McAnena talk about our new report, Getting back on track: Using the Equality Act to enable and protect sport for women and girls – why we wrote it and what is in it.

They discuss how the law enables separate sport for women and girls in several different ways, how this matters for fairness, safety and opportunity all the way from grassroots participation up to elite competition, and why failing to have a female category may result in legal challenge for indirect sex discrimination and harassment.

Read the report online

Download the PDF

Sex matters in sport: how the Equality Act 2010 provides the legal framework for protecting and providing for women and girls in sport.

Enabling and protecting sport for women and girls: Maya’s speech to the House of Lords as we launched our report.

Housing men in women’s prisons is unlawful

The government has been allowing trans-identifying men to be housed in women’s prisons on a case-by-case basis. Now a legal opinion published by the Centre for Crime and Justice Studies, by Ben Cooper KC and Myles Grandison, concludes that in light of the 2025 For Women Scotland ruling, this cannot continue.

Read more…

Exclusive offer for memo readers

Get 25 percent off tickets for the Rethinking Youth Gender Medicine conference, Sunday 5th and Monday 6th July in central London.

Taking as their theme the foundational principle of medicine to “first, do no harm”, the Clinical Advisory Network on Sex and Gender and the Society for Evidence-Based Gender Medicine are bringing together leading international figures fighting for ethical, evidence-based gender medicine. The programme will cover all aspects of the social and clinical care of children and young people experiencing gender-related distress.

Maya, Fiona and Helen will all be attending for at least part of the conference. We think the medical transition of children and young adults is one of the biggest scandals of our age, and this conference is an important moment in the fightback. With the Cass Review prioritising psychosocial care for gender-distressed youth, legal challenges to the proposed trial of puberty blockers and the possibility that NHS England will halt new cross-sex hormone prescriptions for under-18s, the UK is leading the way in ending the harms.

Yet there is no room for complacency. Serious concerns remain about the social transition of minors, irreversible interventions such as mastectomies for under-25s, inadequate support for detransitioners and plans for a “conversion practices” ban that would criminalise ethical, evidence-based exploratory therapy.

The stellar speaker lineup includes:

• Stephanie Davies-Arai of Transgender Trend on social transition

• Dr Anna Hutchinson on psychotherapy for gender-distressed young people

• Sex Matters trustee Professor Michael Biggs on the history of puberty blockers

• Neuropsychologist Professor Sallie Baxendale on the effect of puberty blockers on the adolescent brain

• Michael Kerr of Detransition Pathways and Dr Stella O’Malley of Genspect on detransition.

Also joining the programme is Maeve Halligan, founding president of the Cambridge University Society of Women, who will speak about the courage required of professionals working with medically transitioning children and young people, and why those responsible for children’s safety must not be cowed into remaining silent about their concerns.

View the conference programme and buy tickets: Use the code SM25 for 25 percent off in-person and livestream tickets. Further discounts available for retired people and those on low incomes. And especially for student readers of the Sex Matters Memo: attend the entire conference for just £20.

In the news

Louis Goss for The Telegraph broke the news that Lloyds Bank has updated its policy on single-sex facilities and told staff to use bathrooms that correspond with their biological sex. The article referred to our recent report, Sex-based rights in the City, which found that leading banks including HSBC and NatWest were continuing to let staff use toilets based on gender identity rather than sex.

Susanna Rustin for The Guardian wrote that the EHRC code of practice protects a range of vital single-sex spaces, not just toilets, and mentioned our criticism of the section of the guidance that says sex should be treated as special-category data.

Greg Heffer wrote for the Daily Mail on the new health secretary James Murray’s admission that he has changed his mind since stating in 2022 that “trans women are women”, and that he now vows to protect single-sex spaces in the NHS on the basis of sex. Maya said he needs to update NHS policies and language, and to rip up Annex B, which says single-sex wards must operate on the basis of “gender identity”.

Daniel Martin for The Telegraph reported that the House of Commons has signposted staff upset by the EHRC code of practice to transactivist organisations for support. Helen said it wasn’t acceptable for House of Commons management to appear to mourn the enforcement of sex-based rights at the same time as MPs are considering the guidance under parliamentary procedure.

The news that City of London councillors have voted in favour of a policy that would enable trans-identifying men to swim at the Ladies’ Pond at Hampstead Heath was covered widely by the media, including Daniel Lavelle for The Guardian, Daniel Martin for The Telegraph, Ellie Doughty for The Times and BBC London. Fiona said that many councillors seem to think UK equality law doesn’t apply to the ponds, and that the councillors had voted to unlawfully discriminate against and harass women.

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In 2021, in the case of FDJ v Secretary of State for Justice, a female prisoner challenged the Ministry of Justice’s policy of housing some men who identify as women in women’s prisons. In particular, she challenged the lawfulness of allocating male prisoners who have been convicted of sexual or violent offences against women to the women’s estate.

The government of the day defended its policy of “case by case” decision-making and the High Court agreed it was lawful, on the basis that to exclude all males from women’s prisons “would be to ignore, impermissibly, the rights of transgender women to live in their chosen gender”.

Now a legal opinion published by the Centre for Crime and Justice Studies concludes that in light of the 2025 For Women Scotland ruling, the FDJ judgment does not hold up.

Read the legal opinion

In FDJ the judges proceeded on the premise that the exceptions in the Equality Act 2010 which allow single-sex services can be applied on a case-by-case basis, whereas it is clear from the reasoning of the Supreme Court in For Women Scotland that the exceptions are concerned with the differential treatment of men and women as groups, which is what allows men and women to be separated in the first place.

For Women Scotland confirmed that when it comes to single-sex services, a service provider cannot rely on the exceptions if it opens a service up to both sexes.

On this basis, equality-law specialist Ben Cooper KC and public-law specialist Myles Grandison explain that the current prisons policy is not just logically incoherent (not to mention inconsiderate of female prisoners). It’s also unlawful and opens His Majesty’s Prison and Probation Service (HMPPS) to discrimination claims not only from women, but from men too.

The exception cannot have exceptions

The most recent policy on the placement of transgender prisoners concerns both transgender men and transgender women. But it’s clear from the context that the real-world risk only goes one way and it’s based on sex, not identity.

Male prisoners placed in the female estate put female prisoners at risk. And female prisoners held in the male estate (or in approved premises for men outside prison) are themselves being put at risk.

The decision about where to place a trans-identifying male prisoner under the current policy involves three criteria: whether the prisoner has a gender-recognition certificate, whether the prisoner retains male genitalia and what kind of crime or crimes the prisoner has committed. It is only since 2019 that men with histories of violent or sexual crimes have been excluded from consideration for transfer to the female estate. That policy change came after it was revealed that at least six transgender-identifying men had committed assaults in women’s prisons between 2016 and 2019.

The Prison Rules 1999 state: “Women prisoners shall normally be kept separate from male prisoners.” This formulation allows for some discretion that might permit exceptional males to be housed with women or women with men.

But as the legal opinion explains, whether that is lawful is determined by the Equality Act, and as the Supreme Court made clear once a biological male is housed in a women’s prison, something has shifted legally.

In FDJ the government’s lawyer argued, and the court accepted, that “the minister was under no obligation to apply [the single-sex exception] either generally or in any particular case”. But For Women Scotland shows that this was wrong.

The Equality Act makes it unlawful for a person concerned with the provision of a service to the public to discriminate as to the terms on which the service is provided. It is not clear whether prisoners constitute a “section of the public”, but this is irrelevant because the Equality Act also makes it unlawful for a person to discriminate in the exercise of a public function.

By allowing some men to be housed in the female estate (and to be held in female approved premises while on probation), the prison and probation service has left itself vulnerable to discrimination claims from gay men, child sex offenders, former police officers and non-trans males – any or all of whom could reasonably claim to be disadvantaged by being housed only with men. Other prisoners (of either sex) might simply prefer the company of members of the opposite sex, whether for social, romantic or sexual reasons.

And then there is the unlawful discrimination against women forced to share with men, who are exposed as a group to disproportionate disadvantage and sexual harassment.

The new legal opinion points to research by Professor Jo Phoenix noting that the mere presence of male offenders may have a re-traumatising effect on women prisoners who have experienced male violence, including sexual violence:

“There is a growing evidence base that takes the form of testimonials, but to date there has been no large-scale attempt to understand the effect of placing anatomical males who identify as women in women’s prisons from the perspective of the women, or the prison officers. A former governor of a female prison (Rhona Hotchkiss) attests to the retraumatizing effect of placing transgender prisoners in female prisons. In a personal communication with this author, and in written evidence in a judicial review, Hotchkiss states that the mere presence of male offenders amongst a population that has disproportionately suffered male violence causes retraumatization, particularly if these individuals are also present in any prison programs designed for the women to address the male violence they have experienced.”

How many, and where?

It’s difficult to ascertain how many female prisoners are currently housed in facilities that also house trans-identifying males. In March 2025 there were, however, known to be 339 transgender prisoners, of whom 276 (about 80%) were biological men who identify as women. Most of these male prisoners are held in the male estate. There are no figures for how many men are living in women’s probation hostels or taking part in diversion programmes for female offenders.

In May 2026, the Daily Mail reported that seven male prisoners were being held at Downview, a women’s prison and young offender institution. All were accommodated on E Wing, a dedicated unit for male transgender prisoners. The government argues that E Wing is not part of the general women’s estate because prisoners on E Wing are held separately from other prisoners “and can only access the wider prison’s regime where this is supervised by staff and has been risk-assessed to ensure safety”. But this still means that women are forced to associate with trans-identifying men, and punished if they refuse to refer to them as women and “she/her”.

This year another prisoner, Aurin Makepeace, was allocated to a women’s prison, HMP Styal, while on remand. He was found guilty of killing his ex-partner, whom he met when they were both serving time in a men’s jail.

There is no reason to think that professing a gender identity makes a person less likely to correspond to the offending patterns usual for their sex. Indeed, prison data seems to suggest that trans-identifying males may be more likely to commit sex offences than other men, who are in turn far more likely to commit such offences than women are. Of male offenders detained in the UK who are known to identify as trans, 62% had been convicted of sexual violence, compared with 17% of male prisoners in general.

Evidence of trans-identifying men, male crossdressers and other men with various gender identities committing vile sexual crimes is piling up. Philip Tarver, a habitual cross-dresser, wore a negligee while stabbing his 86-year-old disabled mother in the heart before decapitating her and putting the head in the freezer. Scarlet Blake (birth name unknown), a man with an erotic fixation on strangulation, murdered a stranger and dumped his body in a river, and had previously livestreamed himself torturing a cat to death and putting the body parts in a food blender. David Challenor dressed up as a little girl in adult-sized baby dresses and nappies while torturing a ten-year-old girl he held captive in his attic and photographing her sexual abuse.

These crimes do not match female-pattern offending. The data and the anecdotes refute the presumption that there is something about claiming to be transgender that makes a male more like a woman in terms of criminal risk.

The HMPPS policy suggests the authorities have not given adequate weight to the welfare and dignity of women forced to serve their sentences locked up with male criminals. Indeed, Cooper and Grandison write that placement decisions focus on the personal profile of the individual male inmate, while considering women’s concerns only as a broad collective. No real care is taken to avoid traumatising any female inmate based on her individual profile.

Before the For Women Scotland judgment the courts, government and equality regulator all got the law wrong. They were, in effect, viewing women’s prisons as places that exist because women have specific needs, and the women held in them as resources for men rather than full human beings with full human rights.

Arguments based on protecting the dignity of female prisoners may go nowhere. But the now-clear legal risk might spur the responsible minister to act to restore the single-sex status of facilities that were only ever intended for women. The exception that allows single-sex services that keep women safe from male violence must allow no exceptions.

More about why sex matters in crime

Sport and physical recreation are one of the most obvious places where women and girls need dedicated provision and investment to ensure opportunity, fairness and safety. This is because men are, on average, taller, faster, and stronger than women. Female participation lags behind male participation. Single-sex spaces such as changing rooms are also crucial to female inclusion.

Rules and policies that allow men to participate, compete or use facilities “as women” disadvantage women.

Sex Matters’ new report, Getting back on track, explains how the Equality Act 2010 provides the legal framework for protecting and providing for women and girls in sport.

• Read the report online.

• Download a pdf version.

• Listen to Fiona McAnena and Maya Forstater discuss the report in the Sex Matters podcast.

• Read Maya Forstater’s speech at the report launch at the House of Lords on 4th June 2026.

Under the Equality Act, sports organisations can be service providers, employers, associations and qualification authorities. Duty bearers that design or operate policies (or instruct, cause or induce others to do so) which put women at a disadvantage are at risk of claims for sex discrimination. Public authorities may also face claims that they are not fulfilling the public-equality duty. Women and “trans women” do not share a protected characteristic, meaning that this group cannot be the target for lawful positive action “for women”.

Legal misunderstanding

Over the past 15 years, governments, sports councils and national governing bodies (NGBs) have conflated the protected characteristic of “sex” (innate biology) with “gender reassignment” (identifying as transgender). This resulted in policies that prioritised allowing men who identify as women to access female spaces, activities and competitions under the banner of “inclusion”, undermining female-only provision.

The Supreme Court ruling in For Women Scotland v Scottish Ministers clarified that in the Equality Act, the terms sex, woman, and man refer to a person’s innate biology, thus confirming that it is lawful to exclude men (including all “trans women”, regardless of whether they have a gender-recognition certificate) from benefits, services and facilities provided for women.

The court affirmed that including biological men in provisions for women undermines the purpose of the Equality Act exceptions that allow single-sex provision and the public-sector equality duty.

It’s not just Section 195

The legal exceptions that allow for single-sex activities and facilities in sport go well beyond those concerned with participation as a competitor. They include exceptions that enable service providers to give women and girls the time, space and resources they need to thrive in sport. Supporting female participation isn’t just about who gets to compete in which event, but about what enables sports providers to offer services, investment, competitions, facilities and development programmes to women and girls across a range of situations:

• Single-sex associations (Schedule 16)

• Single-sex and separate-sex services (Schedule 3 Part 7)

• Positive action to meet specific needs of women or men (Section 158)

• Charities for women or for men (Section 158)

• Competitive events (Section 195)

• Employment limited to men or women where this is a genuine occupational requirement (Schedule 9).

The exceptions are permissive rather than prescriptive, but this doesn’t mean providing for women and girls in sport is optional.

• Organisations that cater for both sexes should make sure that they consider the needs of women and girls: failing to provide fair and safe sports opportunities may amount to indirect sex discrimination.

• The public-sector equality duty (Section 149) requires that public authorities consider women’s needs when setting policies. This includes the UK sports councils and local authorities.

Unlawful policies and practices continue

Despite the legal clarity of the Supreme Court ruling, many organisations continue to operate unlawful policies. Examples of current practices that undermine women’s sport include:

• Misguided inclusion policies: bodies like the Lawn Tennis Association and Royal Yachting Association encourage local clubs to presume inclusion for “trans” individuals, allowing trans-identifying men into women’s competitions even though this leads to female exclusion and self-exclusion.

• Female participation programmes undermined: activities aimed at increasing female participation, such as British Cycling Breeze Rides, are advertised for women but welcome trans-identifying men. The result is that women who have been led to expect a women-only activity may find themselves confronted with a man, sometimes in secluded locations.

• Unreliable data and rankings: some charities such as Parkrun encourage trans-identifying men to register by “gender” rather than sex, allowing male runners in the female category to inflate their age grade scores and top the female rankings, rendering women’s finish positions unreliable.

• Culture of fear: the sports sector has created an atmosphere of intimidation, in which women are warned against discussing fairness and safety, and risk sanctions or non-selection if they speak out against the inclusion of males in the female category.

Sports bodies that continue to operate policies that allow men in women’s or girls’ activities risk legal liability for direct and indirect sex discrimination against women, as they are no longer protected by the Equality Act exceptions. Public bodies also risk judicial review for failure to comply with the public-sector equality duty.

The need for leadership

You shouldn’t need to be a scientist or a lawyer, an expert in the Equality Act or particularly brave to argue that sports should be provided fairly and safely for women and girls, but right now you do.

The report ends with a call for leaders in the sector to step up:

1. The minister for sport must call for opportunity, fairness, and safety for women and girls to be respected at every level of every sport.

2. The Sports Councils Equality Group (SCEG) should update its misleading 2021 “trans inclusion” guidance to withdraw the so-called trans-inclusion option, making clear that women’s and girls’ activities must exclude everyone male.

3. The sports councils must make a joint statement committing to women’s sport and producing clear guidance that when it comes to protections against sex discrimination, “woman” means female and “man” means male.

4. Individual sports councils need to bring data-collection surveys and registration data in line with the biological, binary reality of sex as defined in the Equality Act.

National governing bodies and publicly funded organisations should sign a fairness pledge to protect women’s sport and to use sex-based categories in their equality impact assessments.

Read the report

Protect sport for women and girls

We show how UK law provides for separate sport for women and girls in several different ways, for fairness, safety and opportunity, from grassroots participation to elite competition, and why not having a female category may result in legal challenges for indirect discrimination and harassment.

On 4th June 2026, Sex Matters launched its latest report on sport: Getting back on track: Using the Equality Act to enable and protect sport for women and girls. This is an edited version of Maya Forstater’s speech at the event, which was held in the River Room in the House of Lords.

Friends and colleagues. Thank you for joining us here today for the launch of Sex Matters’ new report. And thank you to Baroness Sharron Davies for hosting us and for everything she does for women’s sport.

Sex Matters is a charity that campaigns for clarity about sex in law and policy in the UK. We do this because such clarity matters: for fairness and safety for women, for children to grow up secure in their bodies and for institutions to work for us all.

The purpose of this report is to explain the law on sport in simple terms and to issue a call to action for ministers, sports councils and national governing bodies to stand up for women and girls in sport at every level.

We are all here because we care about sporting opportunities for women and girls, in everything from archery to Zumba, and at every level from young women who might one day play for the Lionesses or the Red Roses or compete in the Olympics to women who want to take part in their local Parkrun or go to gym and have privacy and dignity in the changing rooms.

There is so much more visibility, interest, participation and investment in women’s sport and fitness than ever before. And that is something to celebrate. But for the past 15 years a misunderstanding of the law that is supposed to protect women has been allowed to undermine the protection, focus, fairness, opportunity and resources needed for women and girls to thrive in sport.

Best intentions

In 2011 the government launched a one-page charter, Tackling homophobia and transphobia in sport. The founding signatories included the Lawn Tennis Association, Rugby Football Union, Football Association and England and Wales Cricket Board. They pledged to challenge “unacceptable behaviour” – a laudable aim.

In 2013 the Sports Councils Equality Group, made up of the five UK sports councils, published guidance on transsexual people and competitive sport. Like many organisations at the time, including the equality regulator itself, the group misunderstood the law – the Equality Act 2010 – that protects women and girls from sex discrimination and harassment.

They advised sports governing bodies that the inclusion of male participants identifying as women should be the default position unless specific concerns about safety or fairness related to an individual could be demonstrated.

Hostile environment

We now know that this was wrong in law. And it was simply not fair. It led to injustice. Women lost places on the podium, places on teams.

But more than that: women’s sport and sports organisations became a hostile environment for women who wanted to speak up for fairness and safety, and for centring women’s interests. To give just one example, in 2024 Cerys Vaughan, a teenage footballer who was playing for her local team in Wigan, asked a bearded transgender player on the opposing team: Are you a man?

The Football Association ruled that she had been abusive, indecent and insulting, and suspended her for six games. Cerys didn’t lose an Olympic medal, but the ban threatened to scupper her A-level PE coursework. And sport matters at that level.

My colleague Fiona McAnena, who leads on sport for Sex Matters, and the SEEN in Sport network, who are publishing a report this week on women’s experiences, hear from women and girls up and down the country who feel betrayed and abandoned, and stressed and angry because they have had to face men in women’s changing rooms, women’s leadership programmes, women’s yoga classes, women’s teams. They tell us their sport has been made into a hostile environment.

Cerys found help and appealed against the sanction. Ultimately, she won. But she should not have had to do this. She should have been concentrating on playing football.

She never should have faced a male player on the field and have been expected to pretend not to notice. And nor should the local club organisers and match organiser. Such a situation is not fair and it is not safe.

The “unacceptable behaviour” was not Cerys Vaughan’s. It was all the institutions that allowed this to happen and pushed the responsibility for decision-making down through the sport system who were behaving unacceptably.

And this has happened in every sport. Those running sports have lost sight of what women’s sport is for. And they lost sight of what the Equality Act is for: to protect people against discrimination and harassment, including women on the basis of sex.

The science

The chair of Sex Matters’ board, Dr Emma Hilton, is also here today. She is a developmental biologist who has done a great deal of work explaining the science of sex differences. Men are on average taller, faster and stronger. They have bigger bones, longer limbs, wider hand spans, wider shoulders and narrower pelvises. There are so many physical differences, and it turns out they matter not only in the obvious power sports such as boxing, rugby and weightlifting, and in the speed sports, where teenage boys beat the women’s 100m world record every year, but also in precision sports such as darts and pool.

If you have science questions, Emma is your woman. But this report is about the law.

The Equality Act

In the Equality Act, Parliament deliberately created a framework that combines protection against discrimination with carefully designed exceptions that allow for single-sex services and associations, positive action and the public-sector equality duty, which requires women’s needs to be considered.

Those provisions are an acknowledgement that equality is not always achieved by treating women and men identically. In many circumstances, equality requires targeted measures to address disadvantage, meet distinct needs and create fair opportunities for participation. Sport is one of the clearest examples.

Last year the Supreme Court made the law clear.

• In order to provide a facility or service for women you must exclude men, including men with a transgender identity.

• Excluding trans-identifying men from women’s sport is not “unacceptable behaviour”. It is lawful and fair. And it always was.

• Excluding men doesn’t have to be done individually, on a case-by-case basis. The Equality Act is about how you treat women and men as categories.

• Where the act says “women” and “men” it means “female” and “male”.

What we have done in this report is pull together all the parts of the act that relate to sport and show how the act works as a whole to protect women and girls in sport.

If you take away one insight from today, please make it this: “It’s not just about Section 195.” This is the part towards the end of the act you will find if you search for the word “sport”. It is specifically and only about participation as a competitor.

Because of course sport isn’t just about competition. No-one starts with competition. They start with learning, practising. They need facilities and coaching, time and space, changing rooms and investment. If women and girls are forced to share these with men and boys, it is likely that they will be disadvantaged well before they get anywhere near competition. In other words, they will face sex discrimination. So they need their own provision.

The message of this report is that to understand what the Equality Act says about sport, you need to look at the act as a whole. Its provisions for employment, associations, charities and services apply to the sport system just as they apply to every other area.

Start with sex discrimination: women and girls have a right not to be subjected to detrimental treatment related to being female when participating in sport, whether as competitors or in any other capacity. And do not lose sight of that.

Single-sex activities and facilities

The Equality Act includes a range of provisions that permit and support female-only sporting provision in order to make this lawful. These are not limited to competition. They are threaded throughout the act. They include exceptions for single-sex associations, single-sex and separate-sex services, positive action, single-characteristic charities and employment. In mixed-sex activities such as Parkrun, you must not run them in a way that disadvantages women – which is what happens when you allow men’s times to be recorded as women’s.

Taken together, these provisions create a coherent legal framework which allows women and girls to be supported, encouraged and protected in sport at every stage and at every level, with facilities, investment and fair rules.

The same framework enables individuals to bring legal claims. But they shouldn’t have to. Women and girls like Cerys Vaughan should be focusing on playing the sports they love, not fighting through the courts. And you shouldn’t have to be a scientist or a lawyer, or particularly brave, to argue that women’s sports are for female people.

A call for leadership

It is for organisations, sports leaders and public bodies to protect women’s sport. Doing so does not require new legal protections. It simply requires the consistent application of the protections that already exist.

It requires leadership by ministers, sports councils, regulators and governing bodies to ensure that the interests of women and girls are centred at every level.

We call on sports leaders to stop looking for compromises and get-out clauses and get back to protecting, celebrating and promoting women and girls in sport because it is the right thing to do.

Thank you all for coming and for speaking up for women’s sport. We hope you will find this report useful for your work. We hope you can work together to press leaders to protect women’s sport, and take the pressure of ordinary women and girls like Cerys Vaughan.

Finally I would like to thank the sportswomen like Sharron Davies, Tracy Edwards and Mara Yamauchi, as well as the Women’s Sport Union and groups like SEEN in Sport, all of whom have done so much to raise awareness of the need for female-only sport. And to thank the sports journalists who have written about this topic, the lawyers who have helped us to understand the law, and my colleagues at Sex Matters who put this report and this event together with me.

Most of all I’d like to thank my colleague Fiona McAnena, who has done so much, first at Fair Play For Women and then, for the past two years, with us, to make sure that all sports’ national governing bodies know that sex matters.

Read the report

I am sure that Sex Matters supporters will not be surprised that following the publication of the long-awaited EHRC guidance the rump of recalcitrant, confused and captured organisations have not meekly agreed to get in line with the law.

At the Hampstead ponds the City of London is still operating its gender-identity based policy, and we have heard from several pond swimmers who were disturbed and upset by the sight of men in skimpy bikinis among the sunbathers during the hot half-term week.

Marks & Spencer is still advertising “men’s” and “women’s” changing rooms on its website, but using ambiguous signage in store and telling customers they can use whatever changing rooms they want.

Stonewall has apparently assured the EHRC that it will follow the Equality Act, but the activist group TransLucent and the trade union Unison say they want to change the law, and charity-sector leaders are telling charities they can afford to “take their time” before coming into compliance.

So there are going to be a lot more legal cases before this is all done.

Is it feasible for a lot of individuals to start legal cases? For most people it is too expensive and difficult – and it’s hard for us to help with a lot of individual cases. But we have been helping people to work out whether have a case that could be funded by the JK Rowling Women’s Fund, and putting together detailed guidance on how to make your own “small claim”.

This week we have published a guide to pursuing a small claim for gender-critical belief discrimination. More about that in the podcast and below.

We have also heard that our case against the City of London will be heard in November, which is not soon enough but will come. We are also working on several more cases, which I will share more news on in the next few weeks.

Maya Forstater

Small claims explained

Fighting bigotry in service provision

In this week’s episode, Helen and Maya talk through what is colloquially known as a “small claim” for belief discrimination against a service provider.

Examples of such discrimination include being refused service in a pub, barred from a gym or forced to leave an event because you are known or suspected to hold gender-critical beliefs (or to be associated with someone who does).

Sex Matters has published a guide on this process, which you can read on our website.

Fighting bigotry in service provision

If you’re refused service in a pub, barred from a gym or forced to leave an event because someone knows you hold gender-critical beliefs, you can take what’s known as a “small claim” for belief discrimination to the county court. We explain the law, show you how to prepare a claim and what to ask for, and guide you through writing your “letter before claim”.

Read more…

In the news

Coverage of the Equality and Human Rights Commission’s updated code of practice for service providers continued this week. Maya appeared on GB News’s Free Speech Nation with Josh Howie, while Fiona was interviewed by Julia Hartley-Brewer on TalkTV.

Daniel Martin and Dominic Penna for The Telegraph broke the news that Sex Matters has written to Bridget Phillipson calling for withdrawal of the “asking about sex” section of the EHRC guidance on the basis that it is legally wrong. Maya said that sex is not special-category data, but ordinary personal data that can be used routinely, just like other personal information such as name or age.

Lee Peart for Healthcare Management quoted Maya in its coverage of the guidance as saying that any business, charity or public-service provider that took a wrong turn and started letting men who identify as women use women’s spaces or vice versa must now urgently fix its policies, and that organisations that don’t want to get into legal trouble should seize on this opportunity for a reset.

Gabriella Swerling for The Telegraph had a front-page story on Sunderland Minster posting signage on social media which encourages trans-identifying people to use the bathroom of the opposite sex, in defiance of the guidance. Maya said that any woman using the facilities would probably have a case in claiming harassment against the diocese of Durham, so this just seems like legal action waiting to happen.

In other news, Gordon Rayner for The Telegraph covered the news that the new BBC director-general Matt Brittin is under pressure to deal with ongoing transactivism within the broadcasting corporation. Fiona said that the good work of many BBC journalists is being undermined by misleading output from other teams, and that to regain public trust Brittin needs to weed out transactivists and reassure staff that genuine impartiality will be rewarded, not punished.

Mary Wright and John Glover for the Scottish Daily Express wrote on the findings from campaign group Women Won’t Wheesht that 16 out of 17 Scottish universities, including Edinburgh, Glasgow, Aberdeen, Dundee and St Andrews, are failing to comply with the Supreme Court ruling. Fiona said that these universities are prioritising the feelings of young men who say they are women, and that graduates will enter the workplace thinking that women’s needs take second place to male feelings.

If you’d like this memo in your inbox every Friday at teatime, join our mailing list now.

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Examples of such discrimination include being refused service in a pub, barred from a gym or forced to leave an event because you are known or suspected to hold gender-critical beliefs (or to be associated with someone who does).

Sex Matters has published a guide on this process, which you can read on our website.

Most of the high-profile gender-critical belief-discrimination cases to date have related to workplaces. But gender-critical belief discrimination is unlawful in services, too – and now that Bridget Phillipson, the Minister for Women and Equalities, has finally published the updated Code of practice for services, public functions and associations, anyone who experiences this sort of discrimination by a service provider can cite it when complaining or seeking legal redress.

Examples of such discrimination include being refused service in a pub, barred from a gym or forced to leave an event because you are known or suspected to hold gender-critical beliefs (or to be associated with someone who does). This may happen because you take gender-critical positions publicly, because you are known to the person committing the discrimination or because you have manifested your protected belief by complaining about the organisation’s policy of allowing people to use single-sex spaces based on gender identity, or about a person of the wrong sex in a single-sex space.

The Supreme Court judgment of April 2025 had already made clear that when it comes to single-sex provision, “single sex” must mean what it says. But many organisations delayed fixing legally flawed self-ID policies, citing the excuse that they were waiting for the updated code. Now that it has been published, that feeble excuse no longer exists. When you complain, you can point to sections of the new code which spell out that discrimination on grounds of gender-critical belief is unlawful, and that trans-identifying people must not be granted permission to use opposite-sex spaces.

Quoting the code

Here are the most relevant sections of the new code to cite when a service provider discriminates on the basis of gender-critical belief (emphasis added).

4.91 Less favourable treatment which is either because a person holds a religious or other protected belief, or because they have expressed such a belief, will normally constitute unlawful direct discrimination. This is the case even if the service provider, body exercising public functions or association, or a third party, objects to the belief or expression of the belief.

The code makes clear that discriminating against someone because of a negative stereotype of people who share their belief is direct discrimination. This includes the stereotype that it is “transphobic” to hold or express “gender critical” beliefs:

4.100 Examples of stereotypes in relation to religion or belief are that persons who hold or manifest certain gender-critical beliefs necessarily have negative attitudes towards trans people…. The judgment explains that: ‘it may be that some persons who hold / manifest such beliefs have such animus, but it is stereotyping to assume that all do.’

Service providers cannot lawfully permit trans-identifying people to use spaces or services for the opposite sex:

13.130 If a service provider… admits trans people to a service intended for the opposite sex, then it can no longer rely on the [single-sex and separate-sex exceptions]. This means that if a service is provided only to women and trans women or only to men and trans men, it is not a separate-sex or single-sex service under the Equality Act 2010.

13.131 A service like this is very likely to amount to unlawful sex discrimination against the people of the opposite sex who are not allowed to use it. A service which is provided to women and trans women could also be unlawful sex discrimination or lead to unlawful harassment against women who use the service. Similar considerations would apply to a service provided for men and trans men.

13.107 …It is likely to be reasonable for a woman to object to the presence of a man if she will be getting undressed or in a vulnerable situation when she is using the service.

Service providers may be legally liable for gender-critical belief discrimination committed by staff:

3.50 Service providers… need to take steps to ensure that discrimination, harassment and victimisation is not occurring.

3.51 A service provider… will be liable for unlawful acts committed by their employees unless they have taken reasonable steps to prevent such acts.

Prejudiced and proud

That gender-critical beliefs are protected under the characteristic of “religion or belief” in the Equality Act was established in 2021 in the precedent-setting case of Maya Forstater v CGD Europe and others. This means that subjecting someone to discrimination, harassment or victimisation for holding or manifesting gender-critical beliefs is unlawful, just as it would be if the person held some other protected belief such as, say, humanism or Judaism. But after years of gender-critical beliefs being widely presented as bigoted and “transphobic”, many people think otherwise.

Being targeted by someone prejudiced, based on negative stereotypes about people who share your belief, is deeply upsetting. But the good news is that compared with other forms of unlawful discrimination, the evidence may be easy to gather. Unlike other forms of discrimination, discrimination against gender-critical people is often overt, even proud. The person or organisation involved may see it as a virtue (and might even wrongly think that the Equality Act requires them to exclude you). They may be willing to tell you in front of witnesses or in writing why they acted as they did.

When belief discrimination happens at work, the victim must take a case to the employment tribunal.

For a case to do with services the correct jurisdiction is the county court. If the facts are complicated or disputed it is always worth talking to a lawyer, but if they are straightforward you may be able to use the small claims process to take action effectively.

Here is our guide to how to take what is colloquially known as a “small claim” for belief discrimination against a service provider.

On Thursday 21st May the Equality and Human Rights Commission’s long-awaited code of practice for services, public functions and associations finally landed. It is largely very good and will be helpful to give businesses, public bodies, charities and associations confidence to follow the law, not the misinformation.

Service providers should get cracking and fix their policies now. “Waiting for the guidance” was always a bad excuse, but in any case now it is gone.

Most importantly, the new code replaces a legally flawed line in the previous version, dating from 2011, about allowing people to use single-sex services “according to the gender role in which they present”, which did untold damage. The new version instead provides detailed explanations of how the single-sex exceptions work based on sex, not gender identity.

It explains that there is no lawful option whereby service providers can admit trans people to a service intended for the opposite sex. If they do this, they are likely to lose the ability to rely on single-sex and separate-sex legal exceptions, opening them to liability for committing sex discrimination against people of the opposite sex who remain excluded, and sex discrimination or harassment against people forced to share an unexpectedly mixed-sex space. This is the argument we are running in our case against the City of London over the gender identity-based admissions policy at the Hampstead ponds.

When the guidance dropped, our team settled down to speed-read, interrupted by sending out press quotes, answering a zillion WhatsApp messages, and recording media interviews and our own podcast to help people understand what is important in the 300-page document. You can watch the podcast on YouTube and read our initial analysis on our website.

Over the next couple of weeks we’ll publish a series of blog posts on what the guidance means in various situations: how it will affect different kinds of individuals and organisations and where there might be loopholes or confusion. To get our posts in your inbox as soon as they’re published, subscribe to our Substack.

Overall, we gave the guidance eight out of ten. While there is lots to be happy about in it, we were dismayed to see that it includes a new section on “asking about sex”, which includes legally incorrect advice presented as a requirement of data-protection law. This advice that sex is “special category” and sensitive data is wrong in law, undermines the rest of the guidance, recreates the problem it set out to solve, and harms women’s rights and safeguarding.

This section should never have been included in the guidance laid before Parliament and should be disregarded. It appears to have been added at the last minute following pressure from the government’s Office for Equality and Opportunity to say that there are “limited circumstances in which it may be legitimate for service providers to ask about a service user’s sex” and telling businesses they need staff training on relevant procedures and protocols. (I wonder which organisations will be lining up to deliver that?!)

This directly contradicts both reality and the Supreme Court’s clear interpretation of the law. There are limited circumstances when service providers can ask or record your sex, in the same way that there are limited (but fairly broad) circumstances when a service provider can ask your name, address, date of birth or whether you would like a vegetarian meal. They don’t need to treat sex as special sensitive data.

Read our update about what is so wrong with this part of the guidance. (If you’d like to get our updates emailed to you as soon as they’re published, subscribe to our Substack.)

We will be writing to the Minister for Women and Equalities, Bridget Phillipson, and to the chair of the Equality and Human Rights Commission, Mary-Ann Stephenson, calling for this section to be withdrawn.

Maya Forstater

EHRC guidance finally here!

The new code of practice explained

This week, Maya, Helen and Fiona give their initial take on the Equality and Human Rights Commission’s long-awaited update to the Code of practice for services, public functions and associations, which has been published by the Minister for Women and Equalities and laid before Parliament.

Read the code of practice.

Read our first analysis of the code.

To see our video output:

• find our podcasts on Substack

• follow our YouTube channel

• find us on TikTok.

Will the government solve the sex-data problem in this Parliament?

In the King’s Speech the government announced that it is pressing ahead with a Digital Access to Services Bill that will introduce free, voluntary digital ID, and has said this will not include sex. As the mess in the data section of the EHRC guidance shows, it is crucial to get sex data right. We have published our response to the consultation on digital ID and our equality impact assessment, which shows what a bad idea it is to leave sex out of the plan for digital ID.

Read more…

What is in the new guidance?

The excuse of “waiting for guidance” has finally gone. And the biggest flaw of the 2011 guidance – that it told service providers to operate based on gender self-ID – has been taken out.

Read more…

Sex is not “special category” data

The draft EHRC guidance includes a new section on asking about sex that is wrong about the law. There are five reasons why we will be asking for this section to be withdrawn.

Read more…

In the news

The publication of the EHRC’s updated code of practice was covered widely, including by Alison Holt and Nick Triggle for BBC News, Katie Harris for the Daily Express, Daniel Martin for The Telegraph, Geraldine Scott for The Times, Martin Beckford for the Daily Mail and Lauren Gordon for The Mirror. Maya was quoted extensively, with each outlet taking different lines from her analysis, including that there are no more excuses for organisations to delay updating unlawful policies.

Maya was interviewed by BBC News and Sky News. Helen was interviewed on BBC Radio 4’s The World Tonight, Jeremy Vine on BBC Radio 2 and Julia Hartley-Brewer on TalkTV. Fiona was interviewed by Jeremy Kyle on TalkTV.

In other news, Jason Groves for the Daily Mail revealed comments made by Labour leadership hopeful Andy Burnham that men who identify as female should be allowed to use female toilets, and that those who fight for sex-based rights represent a “minority view”. Helen said that any politician who aspires to be prime minister needs a better grasp of what voters want than to think that fringe transactivist views are mainstream.

Helen was interviewed for a feature by Irish Daily Mail journalist Georgina Heffernan, which covered Helen’s personal background and journey to becoming an author on sex-based rights and director at Sex Matters.

Also for the Daily Mail, David Churchill wrote that the NHS could face thousands of discrimination claims from female staff across the UK following the successful employment tribunal of an NHS employee in Leeds. The tribunal found that she had suffered discrimination and harassment because trans-identifying male colleagues were told they could use women’s toilets and changing rooms according to NHS England policy.

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The new Code of practice on services, public functions and associations from the Equality and Human Rights Commission (EHRC), which was laid before Parliament on 21st May, is largely helpful and clear about how the protected characteristics of sex and gender reassignment interact with the unlawful acts of discrimination, harassment and victimisation as set out in the Equality Act.

But the draft code includes a new section on asking about sex (towards the end of Chapter 13) that is wrong about the law. This section should never have been laid before Parliament and it should be disregarded. We will be writing to the Minister for Women and Equalities, Bridget Phillipson, and to the chair of the EHRC, Mary-Ann Stephenson, calling for this section to be withdrawn.

It appears to have been added at the last minute following feedback from the government Office for Equality and Opportunity (OEO) insisting that there are “limited circumstances in which it may be legitimate for service providers to ask about a service user’s sex” and stressing the importance of training staff on the relevant procedures and protocols.

In an “additional impact assessment”, the OEO expressed particular concern that asking people what sex they are will result in “involuntary disclosure” that they are trans. This perspective can be understood only through the lens of transactivism, which imagines that people recognise others as men or women based on “gender identity”, while a person’s sex is deeply private. It says:

“New guidance explains how service providers can request information about an individual’s sex at birth. This may force trans people to “out” themselves in public or professional settings. Similarly trans people have expressed concern – as in the Good Law Project litigation against EHRC – that having to use disabled toilets will ‘out’ them.”

This directly contradicts both reality and the Supreme Court’s clear interpretation of the law. The Supreme Court recognised that knowing whether someone is male or female is generally straightforward, while “there is no obvious outward means of distinguishing between a person with the protected characteristic of gender reassignment who has a GRC and a person with that characteristic who does not”, or indeed between a person with the protected characteristic of gender reassignment and any other member of their sex, since this protected characteristic does not “require any physiological change or even any change in outward appearance”.

The new guidance claims that information on sex is, or should be treated as, “special category” data:

“13.175 Information about sex is sensitive and should be treated as special category personal data.”

and

“13.182 Information about sex is likely to constitute special category data for the purposes of the Data Protection Act 2018 (DPA) and UK General Data Protection Regulations (GDPR).”

Special-category data is personal data that attracts extra protection in law. It includes information on individuals’ health, philosophical beliefs, sex life and sexual orientation. It is covered under Article 9 of the UK GDPR. The idea that sex is special-category data has been advanced by the Good Law Project. (See our previous blogpost about sport and special-category data.)

If sex was special-category data, it would come under stricter data security requirements that would impose a duty of accountability on service providers and their staff and contractual partners. Mishandling such data can lead to serious breaches of privacy and significant legal penalties. When a business discovers that it has been subject to a data breach, it is required to notify data-protection authorities within 72 hours and also to notify the data subject.

It is simply outside the EHRC’s mandate to issue guidance about data protection, and doing so at the government’s insistence undermines the EHRC’s statutory independence. This advice in any case is wrong. And it undermines the rest of the guidance, recreating the problem which the For Women Scotland judgment solved and harming women’s rights.

1. The section is outside the EHRC’s mandate

The EHRC code of practice is issued under the Equality Act 2006, which allows the commission to issue a “code of practice in connection with any matter addressed by the Equality Act 2010”. It requires that the code is designed to ensure or facilitate compliance with the act or an enactment made under that act, and to promote equality of opportunity.

The section on asking about sex goes well beyond this mandate. There are no specific provisions on asking about sex in the Equality Act. The correct regulator to produce guidance on data protection is the Information Commissioner’s Office.

2. The section is wrong about data-protection law

It is true that sex is personal information and that data-protection legislation can apply. But it is wrong to say that it is sensitive or special-category data. Article 9 (1) UK GDPR defines special categories of personal data as being personal data that reveals racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, genetic data, biometric data and data concerning health or a person’s sex life or sexual orientation. It does not include sex.

The Information Commissioner has said that information about someone’s “gender identity” might be special-category data, depending on the circumstances:

“For example if the information also reveals specific details about the person’s health status or medical care, or an organisation uses it to make specific inferences about health.”

The Information Commissioner goes on to say:

“If there’s no specific information or inference about someone’s health (or any other specific category such as sexual orientation or sex life), it isn’t special category data.”

Sex (whether someone is a man/male or a woman/female) simply isn’t special-category data. And data on a person’s sex simply doesn’t reveal whether they identify as trans.

Sex is ordinary personal data that can be used routinely (similarly to other personal information such as a person’s name or age). In any case purely oral information – such as the reply to a question about whether someone is a man or woman in order to direct them to the correct facilities – would not come under data protection at all. As the judge said in the case of Scott v LGBT Foundation about oral information:

“That is not what the DPA is concerned with: it is a very specific scheme based around records and processing. There are other areas of law (in particular, the law of confidentiality) which are the appropriate vehicle for making such complaints if they are well-founded.”

3. The section incorrectly requires a spurious human-rights balancing test

Paragraph 13.161 says:

“Personal data includes information about a person’s sex which may also be protected under Article 8 of the European Convention on Human Rights (ECHR). In particular, it is important to be aware that some people, including some trans or gender non-conforming people, may wish to keep such information private as far as possible and may find it distressing to be asked about their sex.”

As Supreme Court judge Lord Reed explains in a recent helpful speech on proportionality:

“The UK has what is sometimes called a “dualist” system, which means that international and domestic law operate on different planes. Treaties such as the Convention are binding on the UK on the international plane, but they do not form part of the law of the UK unless Parliament passes legislation to implement them. This is a necessary corollary of Parliamentary sovereignty.”

As Lord Reed says, domestic law continues to be the first port of call for anyone whose rights have been infringed. UK GDPR is the primary domestic legislation that codifies and enforces the fundamental right to data protection, which stems from Article 8.

Individual service providers are not required to go beyond data-protection law and treat oral information or data on sex as special-category data, or to undertake human-rights analysis before processing information in line with GDPR or DPA.

The claim that asking for information on a person’s sex is a breach of Article 8 is widely made by transactivists, as on the TransLucent “Article 8 carry card”.

The Article 8 argument was also used by the government unsuccessfully to try to defend the Office for National Statistics’ decision, in the run-up to the most recent census, to direct people to answer the sex question according to their preferred sex rather than their actual sex. This decision was overturned in court after a challenge brought by women’s-rights activists.

It is neither necessary nor possible to consider the unknowable mental state of individuals before collecting or acting on routine information. Although it may be true that some people find it distressing to be asked about their sex, a service provider cannot know or guess which people they will be (and the information that an individual suffers from such feelings is in itself sensitive).

If a person wants to keep a piece of personal information private in any given situation, whether because of feelings of distress or other reasons, they can “prefer not to say”. However, refusal to give information or to allow it to be recorded where it is needed may mean the person is unable to access a service. This is not a breach of Article 8, any more than it is a disproportionate breach of privacy to require a person to confirm they are over 18 to buy alcohol, or to explain the basis on which they have parental responsibility to enrol a child in school and then to recognise that relationship (as a father or mother) in daily interactions with that school and others with a duty of care in relation to that child.

4. The section undermines safeguarding

An organisation that follows the guidance and treats sex as “special category” data will need to apply this to everyone.

But sex is often relevant for everyday life, formal and informal risk assessment, duty of care and safeguarding, as well as for decisions concerning consent and propriety. Sex forms the basis of many ordinary interpersonal relationships, in particular sexual relationships and parenthood.

Creating an environment where people are expected to treat sex as sensitive “special category” data, to pretend they don’t know what sex other people are, to believe that it is reasonable for people to be offended if asked to confirm their sex and to assume that any individual might not be the sex they appear to be makes it impossible to enforce sex-based rules and creates an environment where ordinary safety and safeguarding are compromised.

It forces people to pretend they don’t know what a man and a woman look like, that men are statistically more likely to undertake violent or predatory behaviour and that women are the targets for specific types of male violence. Neither the Equality Act nor UK GDPR requires this kind of wilful stupidity.

A man who has gained access to a female-only space is not simply a man within the ordinary male risk profile: he is a man who demonstrably possesses the additional risk factor of not respecting rules that exist to protect women. What is relevant is his sex: the fact that he is a man. The fact that he may be trans, non-binary, gender fluid, gender non-conforming or suffering from gender dysphoria is irrelevant (and may well be sensitive information).

Recording such factors or specific concerns would involve much greater processing of personal information than simply asking people to confirm their sex or to leave the space if they do not wish to, without processing any personal data.

5. This section is likely to cause unlawful harassment related to sex

The guidance extrapolates from its misunderstanding of Article 8 and UK GDPR to suggest that service providers and their staff must ask themselves several complex questions before deciding that it is proportionate to challenge a man in a women’s facility and ask him to leave. After thus tying itself up in knots, it warns (at 13.170):

“It is unlikely to be either practical or appropriate to approach any particular individual to make enquiries about their sex in relation to facilities, such as toilets, which are incidental to the primary service.”

There is no legal basis for this instruction, which in effect licenses men to enter women’s facilities and claim that it is inappropriate, possibly unlawful and a breach of their human rights to challenge them.

Telling staff supervising single-sex spaces that they must second-guess themselves when they become aware of a man engaging in the deviant behaviour of accessing a female-only space, or risk breaching data-protection law, will lead to unwanted conduct related to the protected characteristic of sex that is likely to meet the definition of harassment in the Equality Act. It “violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment”.

Section 111 of the Equality Act 2010 makes it unlawful to instruct, cause, or induce another person to commit an act of discrimination, harassment, or victimisation. For the past 15 years men with the inappropriate desire to use women’s spaces have cited legally incorrect advice previously given by the EHRC, which was inserted in the now-superseded 2011 version of the code of practice after consultation with transactivist groups.

It is utterly insulting, and could well be an act of inducement of mass harassment against every woman in Britain, that the OEC has pressured the EHRC to insert a misstatement of the law into its new guidance that will lead to service providers wrongly viewing sex as “special category data” and making it difficult to challenge and remove men from women’s changing rooms and toilets.

Read the code of practice.

Read our first analysis of the code.

The Equality and Human Rights Commission’s updated Code of practice for services, public functions and associations has finally been agreed by the Minister for Women and Equalities and laid before Parliament. A statutory instrument laid under the “negative procedure” becomes law on the day the minister signs it and automatically remains law unless a motion – or “prayer” – to reject it is agreed by either the House of Commons or the House of Lords within a specified period (in this case, the usual 40 days).

Nothing in the code of practice changes the Equality Act 2010. What it does is provide detailed, practical guidance on how to interpret the act. It also removes the excuse of “waiting for guidance”.

Duty bearers that have been using this excuse for inaction, or telling themselves that their policies based on gender self-ID “remain lawful”, are acting irresponsibly and taking significant risk.

The previous version, published in 2011, was ambiguous about the relationship between the protected characteristics of sex and gender. It said:

“If a service provider provides single- or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present.”

It told service providers to operate based on gender self-ID and that they could exclude transgender individuals from services provided for members of the opposite sex only on a “case-by-case” basis. This ignored other people’s rights, was unworkable for service providers and, as the Supreme Court made clear in 2025, was wrong in law.

The new code of practice has removed that error and provided much more detail on the single-sex and separate-sex exceptions in order to counter confusion and misinformation

The new guidance says clearly (emphasis added):

13.130 If a service provider (or a person providing a service in the exercise of public functions) admits trans people to a service intended for the opposite sex, then it can no longer rely on the [single and separate sex exceptions]. This means that if a service is provided only to women and trans women or only to men and trans men, it is not a separate-sex or single-sex service under the Equality Act 2010.

13.131 A service like this is very likely to amount to unlawful sex discrimination against the people of the opposite sex who are not allowed to use it. A service which is provided to women and trans women could also be unlawful sex discrimination or lead to unlawful harassment against women who use the service. Similar considerations would apply to a service provided for men and trans men.

It is possible to offer a mixed-sex service alongside a single-sex service. A mixed-sex service must be open to all service users.

There is a lot of detail in chapter 13 on the exceptions. But in most situations providing a single-sex or separate-sex service is going to be simple and straightforward, as the EHRC has already said in its interim update.

In order to understand the exceptions in the Equality Act, duty bearers need to understand how the act works. The code of practice explains this.

The protected characteristics

The guidance begins by defining the nine protected characteristics, including sex and gender reassignment.

“Sex” means being male or female. The comparator in a sex-discrimination claim is someone of the opposite sex.

“Gender reassignment” is a broad characteristic which covers someone who is at any stage of a personal transition journey, defined as “proposing to undergo, undergoing, or having undergone a process to reassign sex”. It is a protected characteristic separate from sex or sexual orientation. Having this characteristic does not change a person’s sex.

A trans person is protected from sex discrimination based on their sex at birth, and also from sex discrimination related to their “acquired gender” (for example through association or perceived sex).

Unlawful acts

The guidance then explains the familiar Equality Act framework of unlawful acts:

• Direct discrimination: occurs when a person is treated less favourably because of a protected characteristic. It is generally unlawful, unless an express exception can be relied on. This means that providing a single-sex or separate-sex service is likely to be unlawful direct discrimination, unless one of the exceptions in the Equality Act applies.

• Indirect discrimination: occurs when an apparently neutral provision, criterion, or practice puts people sharing a protected characteristic at a particular disadvantage. It is not unlawful if it is a “proportionate means of achieving a legitimate aim”.

  • The aim must be legal, non-discriminatory, and a “real, objective consideration” (for example, ensuring health and safety, wellbeing or dignity). Reducing costs alone is not a sufficient aim.

  • The means must be proportionate, meaning the disadvantages caused must not be disproportionate to the aims pursued.

• Harassment: involves unwanted conduct related to a protected characteristic (including age, disability, gender reassignment, race and sex) that violates an individual’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment.

  • The effect of the conduct is sufficient to establish unlawful harassment, regardless of intent.

  • In deciding if conduct is harassment, courts consider the individual’s perception, circumstances and whether the effect is objectively reasonable (that is, not based on hypersensitivity).

  • The other person’s right to freedom of thought, religion and speech must also be considered.

• Victimisation: subjecting a person to detriment because they have done a “protected act”, such as bringing proceedings under the act or making an allegation of a breach.

Duty bearers

The code of practice relates to the part of that act that covers providers of services (such as local authorities, hospitals and shops), those exercising public functions (such as law enforcement and licensing) and associations (with 25 or more members and regulated admission).

Exceptions

The new code of practice includes detailed guidance on the Equality Act’s exceptions, which permit otherwise unlawful discrimination.

• Positive action: it is lawful for service providers and public authorities to to take proportionate action to overcome or minimise disadvantages, meet different needs, or encourage participation for people who share a protected characteristic.

• Charities: it is lawful for charities to provide benefits exclusively to people sharing a protected characteristic if it is a proportionate means to a legitimate aim, or for the purpose of preventing or compensating for a disadvantage.

• Competitive sport: it is lawful to organise single-sex or separate-sex events where an average person of one sex would be at a disadvantage due to physical strength, stamina or physique.

  • Sex-based rules should be applied on the basis of biological sex:

13.69 Arrangements relating to participation in a gender-affected activity which do not enable fair and safe competition between men and women may amount to unlawful sex discrimination against competitors of either sex, if they are placed at a disadvantage because of those arrangements.

…

13.73 Any sex-based rules or arrangements relating to participation in a gender-affected activity (read paragraph 13.65) should be applied on the basis of biological sex. Therefore, trans people should not be included in single-sex or separate-sex competitions for the sex with which they identify….

• Trans people can be excluded or treated differently from members of their own sex if necessary for fair competition or safety. Organisers should consider alternative arrangements, such as mixed-sex categories, to enable trans people to participate.

• Separate services for women and men: it is lawful to provide separate services or facilities for women and men if a joint service would be less effective and providing the service separately is a proportionate means of achieving a legitimate aim.

• Single-sex services: it is lawful to provide a service exclusively to one sex if it is a proportionate means of achieving a legitimate aim and one of six conditions applies (for example, that only one sex needs the service; that a woman might reasonably object to the presence of a man due to undressing or being in a vulnerable situation; or that physical contact is involved).

• Proportionality considerations: a legitimate aim for single-sex provision includes ensuring the safety, privacy and dignity of women, men or both.

  • The service provider must balance the benefits of the single-sex service (such as reduced risk to women in contexts of undress or male violence) against the needs of all potential users and the impact on those excluded, including trans people.

  • If a service provider allows trans people to use a service intended for the opposite sex, it is no longer a single-sex service under the act and is very likely to be unlawful sex discrimination against others.

  • If a single-sex service is justified, preventing, limiting or modifying a trans person’s access to the service for their own sex is lawful only if it is a proportionate means of achieving a legitimate aim, such as preventing discomfort or distress for other service users. “Service providers should consider whether other service users could reasonably object because they are worried about sharing a single or separate-sex service with someone who appears to be of the opposite sex.” (13.147)

• Communal accommodation: exclusion based on sex or on gender reassignment is lawful only if it is a proportionate means of achieving a legitimate aim and the accommodation is managed in a way that is as fair as possible to both men and women.

Importantly, the EHRC explicitly states that if a women-only service admits “trans women” (trans-identifying men), it may cease to qualify legally as a single-sex service under the Equality Act. That is a major clarification. For years, many organisations assumed they could remain “women-only” while also operating on the basis of gender identity. The guidance says that this will undermine reliance on the act’s single-sex exceptions (see paragraph 13.130 above).

Considering women’s needs

The guidance explicitly recognises that women may reasonably object to the presence of males in contexts involving undressing, trauma recovery or intimate services. The guidance treats those concerns as legitimate factors in the proportionality assessment about whether to provide a single-sex service.

13.107 …It is likely to be reasonable for a woman to object to the presence of a man if she will be getting undressed or in a vulnerable situation when she is using the service.

It makes clear that if a service provider decides to provide a service only on a mixed-sex basis, in situations where women are likely to be in a state of undress; where there will be limited ability to leave or to choose an alternative service; where the service is provided a result of or connected with male violence against women; or where the physical differences between men and women are relevant to the experience of the service and put women at a particular disadvantage, this could be direct or indirect sex discrimination against women who use the service or lead to unlawful harassment against them.

Considering trans people’s needs

The guidance makes clear that it would be direct gender-reassignment discrimination to restrict access by trans people to services provided to people of their birth sex or people of both sexes. However, in relation to single-sex and separate-sex services and sports, this may be lawful.

For universally necessary services like toilets, it is very unlikely to be proportionate to leave a trans person with no service they are allowed to use.

Service providers are encouraged to consider alternative arrangements, mixed services or additional provision where possible. They are also expected to treat people sensitively and avoid unnecessary humiliation.

Asking about sex

There is a new section concerning asking users about their sex. This section is overcomplicated and contradictory. Although it says that service providers can ask and record what sex people are, it suggests that this is an extraordinarily difficult thing to do, rather than a simple matter of observing or recording ordinary personal data in a routine way.

• Service providers can ask an individual about their sex where this is a proportionate means of achieving a legitimate aim (such as diversity monitoring, operational reasons or lawful single-sex provision).

• In single-sex services, the primary method for establishing lawful provision is clear communication (such as “signage, promotional materials including online and hard copies and verbal information provided as part of any enrolment, admission or induction process”; 13.167).

• Asking an individual to confirm their sex may be legitimate where there is clear evidence (based on physique or behaviour, for example) of the opposite sex accessing the service or because other people have complained.

• Although the code prevaricates and expresses caution about asking a person what sex they are, it concludes that a service provider can ask, and can exclude someone of the wrong sex (13.178).

• The guidance notes that no official UK document reliably proves biological sex, since documents like passports and driving licences can be changed.

Section 13.182 says:

“Information about sex is likely to constitute special category data for the purposes of the Data Protection Act 2018 (DPA) and UK General Data Protection Regulations (GDPR). Processing personal data should be done with regard to that legislation and the constraints of the relevant systems and resources.”

This is wrong in law.

Article 9(1) of UK GDPR defines special category data as “personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be prohibited.” It does not include sex.

Bridget Phillipson, the Minister for Women and Equalities, has promised to present the new Code of practice for services, public functions and associations to Parliament this month.

The Equality Act is clear, but the guidance needs to combat decades of misinformation – from the Equality and Human Rights Commission and Government Equalities Office among others – as well as National Health Service policies encouraging people who identify as transgender to believe they have a right to access opposite-sex services.

We have set out some points we will be looking for in the guidance when it comes out.

1. Is it clear that sex is immutable and biological?

• The protected characteristic of “sex” refers to a man (male) or a woman (female) of any age.

• Everyone has a sex, and it cannot change.

• When proving sex discrimination, the comparator is a person of the opposite sex.

• A person’s sex is ordinary personal information that can be recorded in line with data-protection laws.

• Everyone is protected against discrimination based on sex (including the sex that they may be perceived as or associated with).

2. Is it clear that protections against gender-reassignment discrimination do not mean the right to be treated as the opposite sex?

• “Gender reassignment” covers people at any stage of a personal process of transition.

• Having this protected characteristic does not depend on having surgery or a gender-recognition certificate.

• Having this protected characteristic does not provide a right to access services provided for the opposite sex.

3. Is it clear about how the prohibitions against discrimination and harassment work?

• It is likely to be direct sex discrimination to exclude someone from a service because they are a man or a woman (that is, to provide the service only to women or only to men), unless an express exception applies.

• It is likely to be direct gender-reassignment discrimination to exclude someone from a service for both sexes or for their own sex on the grounds that they are trans, unless an express exception applies.

• It is likely to be indirect sex discrimination towards women not to provide a single-sex or separate-sex service in situations where women would be disadvantaged by being offered only a mixed-sex service.

• It is likely to be harassment related to sex to expose people to the unwanted presence of members of the opposite sex in situations where they expect same-sex privacy.

• It is not harassment related to sex or gender reassignment to have and to communicate lawful sex-based rules and expect people to respect them.

4. Is it clear that single-sex associations and charities are lawful?

• It is not unlawful to form associations for people who share a protected characteristic, such as for women only or for men only.

• Associations that follow their own lawful rules are not committing unlawful sex discrimination or gender-reassignment discrimination.

• Associations that do not follow their own lawful rules are likely to engage in unlawful discrimination or harassment.

• It may be lawful to form associations explicitly for combinations of groups of people with different protected characteristics (such as women and transsexuals).

• Charities are required to pursue their objects, and these can include meeting the specific needs of people who share a protected characteristic such as women or men.

5. Is it clear that it is lawful to provide women’s and men’s sporting competitions?

• It is not unlawful to treat men and women differently in a sport, game or other activity of a competitive nature where the average person of one sex is at a disadvantage as a competitor compared to the average person of the opposite sex due to physical strength, stamina or physique.

• In particular, it is not unlawful to arrange single-sex competitions, mixed doubles and team sports with rules specifying the numbers of men and women on the teams.

• Organising sporting competitions that are not fair and safe for women and girls is likely to be sex discrimination. This can include only providing a mixed category.

• There is no lawful mechanism for allowing men who have reduced their testosterone levels to count as women for the purpose of lawfully conducting sporting competitions.

• Women who have taken testosterone may be excluded or treated differently from other women in sporting competitions, where it would not be fair or safe for them to compete.

6. Does it explain why single-sex and separate-sex services are often needed, particularly by women?

• Physical differences between women and men can mean that they have different needs.

• In many ordinary everyday settings women in particular prefer separate-sex facilities for dignity and privacy.

• In any situation that a woman has been told is female only it will be reasonable for her to object to the presence of a man.

• Where a service is provided in response to male violence against women it is likely to be lawful to provide it as a single-sex service.

• Any service that is not single sex or separate sex – in particular a so-called “single gender” service – is mixed sex.

7. Is it clear about the legal basis for single-sex and separate-sex services?

The guidance should:

• set out the reasons for providing a single-sex or separate-sex service

• explain that the test of “proportionate means of achieving a legitimate aim” relates to the service itself, and does not require case-by-base application

• warn service providers that if they provide a service based on gender identity instead of sex they will not be operating a single-sex or separate-sex service under the Equality Act and will be liable to claims of unlawful sex discrimination

• explain that in certain circumstances (where it is a proportionate means to a legitimate aim, such as preventing alarm or distress for other service users) it may be lawful for a trans person to be excluded from a separate-sex service for their own sex.

8. Does it provide practical guidance for duty bearers?

The guidance should:

• explain that measures to ensure that trans people are not disadvantaged mean offering a separate unisex option where this is practical

• offer guidance on what duty bearers can do to encourage people to follow lawful rules – such as making policies and signs clear – and what to do if they refuse

• make clear that staff can operate on the evidence of their own eyes and ears.

Read more: EHRC code of practice expected in May.

As part of the King’s Speech on 13th May the government said that it will introduce a Digital Access to Services Bill during this Parliament in order to introduce a free, voluntary form of digital ID to modernise how citizens interact with public services.

It aims to remove bureaucracy and put people more in control of their data by allowing them to prove who they are and to share only the information required to access particular services. But in the consultation launched in March 2026 the government revealed that it was planning to leave sex off digital ID altogether.

The Digital Access to Services Bill will set out the information that the digital ID will contain and how it can be issued, maintained, stored and verified. This is an opportunity to sort out the problem of official data that confuses sex and gender identity, so that anyone can prove their sex easily and be assured that it will be recorded accurately and clearly.

During the consultation Sex Matters and many concerned individuals told the government that leaving off information about sex was just not good enough.

As part of our response we produced an equality impact assessment which shows just how bad an idea it is for the government to leave sex out of its plan for digital ID.

And we have written to Darrren Jones MP, chief secretary to the Treasury, asking for a meeting to discuss the proposal to include sex on digital ID.

Read our updated briefing Putting sex on digital ID.

Maya delivering our One year later report to Bridget Phillipson

The Minister for Women and Equalities, Bridget Phillipson, has promised to present the long-awaited code of  practice for services, public functions and associations for approval by Parliament this month. If she is going to meet her deadline, the parliamentary timetable means that in practice she has to do it in just a few days’ time – during the week starting Monday 18th May. Once it is laid before Parliament, it will come into legal effect 40 days later unless a motion is passed to annul it. The last time that happened was in 1979.

The code, when it comes, will provide a detailed explanation of the single-sex and separate-sex exceptions as applied in different kinds of single-sex services, with lots of practical examples. Perhaps its most important function will be to stop duty-bearers repeating endlessly that the reason they haven’t changed unlawful policies in the year-plus since the Supreme Court judgment in the case of For Women Scotland is that they are “waiting for guidance”.

There was never any reason to wait. The previous version of the code, which dates from 2011, was clearly wrong in saying that “If a service provider provides single- or separate sex services for women and men… they should treat transsexual people according to the gender role in which they present.” That was already true before the Supreme Court judgment. Service providers really should already have stopped pretending to be confused about this.

In cases such as the Red Lion Pub and Croft v Royal Mail in 2003, Green v Secretary of State in 2013 and the first For Women Scotland case in 2022, courts have confirmed again and again that identifying as transgender doesn’t confer the right to be treated as the opposite sex. The Supreme Court made clear last year that having a gender-recognition certificate doesn’t either. Earlier this year the High Court confirmed that the EHRC’s straightforward explanation of what the Supreme Court judgment means in practice for separate-sex facilities accurately reflected the law.

Most recently, on 13th May, news broke that Faye Russell Caldicott (a pseudonym; she was granted court anonymity) had won her case against NHS England. She was represented by our former chair, Naomi Cunningham – congratulations, Naomi! The judgment is a breakthrough, concluding that a policy of allowing trans-identifying men to use women’s toilets, showers and changing rooms amounts to discrimination and harassment related to sex.

NHS England had defended itself by saying it had applied the law as it understood it based on advice from Stonewall, GIRES and Unison. The judgment brushed that excuse away, saying that “reliance on contemporaneous guidance or good practice advice cannot justify an incorrect interpretation of the law”. It was just the latest confirmation that, whether or not the EHRC’s code of practice is laid next week, organisations that have been delaying fixing faulty policies really need to get on with it.

In other news, my colleague Helen Joyce attended a debate at the Cambridge Union, at which Maeve Halligan, founding president of the Cambridge University Society of Women, spoke in favour of the proposition “This House believes modern LGBTQ+ activism fails its community.” You can watch the entire debate on YouTube; both Maeve and her fellow CUSW founder Serena Worley, who spoke from the floor, performed remarkably.

Maya Forstater

The state of free speech on campus

Equality Act-shaped hole at the heart of Sussex judgment

In this week’s episode, Maya and Helen discuss the recent legal judgments that highlight the importance of strong protections for free speech and academic freedom to people who hold gender-critical views.

As Maya wrote last week in Times Higher Education, at the heart of the High Court judgment in the judicial review brought by the University of Sussex is an Equality Act-shaped hole. The Office for Students’ investigation into its failure to protect academic freedom and free speech on campus had been sparked by the hounding of Professor Kathleen Stock, who had been accused of hate by activists for speaking up about misrepresentations of the Equality Act. The High Court overturned the regulator’s £585,000 fine punishing Sussex for infringing on academic freedom and freedom of speech by adopting a policy in 2018 banning so-called transphobic propaganda from its campus and pledging to discipline those committing “transphobic abuse”.

EHRC code: any moment now...

The EHRC Code of  practice for services, public functions and associations is expected to be presented to Parliament for approval before the end of May.

We have published a short explainer about the code: what it’s for, what happens next and why it matters.

Read more…

Hampstead Ponds: update

You may have seen media reports that the City of London has decided to stick with its policy of permitting people to access the ponds designated for the opposite sex on the basis of their “lived gender”. After the vote in support of the plans at a meeting on 12th May, they must now go before another committee on 4th June.

Meanwhile our legal challenge continues: the court has let us know there will be a hearing this autumn.

Read a case update…

In the news

Ben Lynch for BBC News, The Standard and The Mirror broke the news that City of London councillors have voted not to change the policy of allowing trans-identifying men to access the Ladies’ Pond at Hampstead Heath, which is subject to an ongoing legal challenge by Sex Matters. Susanna Siddell for GB News revealed that the City plans to spend £1m on “privacy” upgrades at the ponds. Legal news site LexisNexis published its analysis.

Writing for Civil Society, Léa Legraien covered Sex Matters’ first annual report. Maya was quoted as saying that much of our work has been about pressing institutions, employers, regulators, schools, sports bodies and public authorities to follow the law.

Sam Merriman for the Daily Mail reported that the King’s Speech included plans for a ban on “conversion practices”. Helen said that the real targets are parents, teachers, therapists and spiritual advisors who don’t subscribe to trans ideology, and don’t think the incoherent, subjective notion of “gender identity” is what makes someone a boy or girl, or a man or woman.

Further coverage of our report on sex-based rights in the City included Emma Ann Hughes for Insurance Post, who focused on insurance provider Admiral’s decision to stick with gender-neutral (mixed-sex) toilets, and Oliver Partridge for GB News.

Fiona was interviewed by Kevin O’Sullivan on TalkTV on the news that Harriet Harman has been appointed as the government’s advisor on women and girls. Shortly after last year’s Supreme Court judgment, Baroness Harman claimed it meant that trans-identifying men could still use women’s spaces.

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The Minister for Women and Equalities, Bridget Phillipson, has said that the government intends to lay the updated draft Code of  practice for services, public functions and associations before Parliament in May. If she is to meet this deadline, the most likely time for this to happen is 18th–21st May.

What you need to know

Download this briefing as a PDF.

What is the code?

The code is prepared and issued by the Equality and Human Rights Commission (EHRC). It covers discrimination, harassment and victimisation in services and public functions, and by associations, as set out in Parts 3 and 7 of the Equality Act. It does not apply to employers or to education, which are covered by other parts of the act.

Does the code change the law?

No. The code does not impose legal obligations. Only the courts and tribunals provide authoritative interpretations of the law. Its main purpose is to provide a detailed explanation of the Equality Act to help those who need to apply the law and understand its technical detail. It can be used in evidence in legal proceedings.

Is the code about single-sex services?

The overall guidance is around 300 pages long and covers all nine protected characteristics. It explains the unlawful conduct of discrimination, harassment and victimisation, and the exceptions that apply in different situations. About 20 pages are specifically relevant to sex, gender reassignment and single-sex services. The relevant parts of the guidance are:

• Chapter 2, which defines the different protected characteristics, including sex – which was clarified by the Supreme Court in April 2025 to mean biological sex.

• Chapter 12, which covers associations is relevant to women-only and men-only associations.

• Chapter 13, which covers exceptions, including those that enable the provision of single-sex and separate-sex services broadly, and competitive sport and shared accommodation specifically.

What will the code say?

The previous code (published in 2011) contained a significant error. It said, at paragraph 13.57:

“If a service provider provides single or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present. However, the Act does permit the service provider to provide a different service or exclude a person from the service who is proposing to undergo, is undergoing or who has undergone gender reassignment. This will only be lawful where the exclusion is a proportionate means of achieving a legitimate [aim]”.

This was clearly wrong before the Supreme Court judgment in For Women Scotland v Scottish Ministers. The judgment put beyond doubt that it was wrong for GRC-holders as well. In the new draft code, it will be replaced by guidance in line with the judgment, which made clear that the Equality Act provides for services to operate lawfully on the basis of sex, not gender roles.

The final draft has not yet been published, but a consultation draft was published before the Supreme Court judgment. Together with case law, including the High Court’s judgment in January 2026 endorsing the EHRC’s interim update published in June 2025, this suggests that the version laid before Parliament will make clear that provisions for single-sex and separate-sex services relate to biology, not identity.

Why is the code significant?

Many organisations have misunderstood and been misadvised about the law, and have operated single-sex services and facilities on the basis of gender identity as a result. Many (including in relation to their responsibilities as employers, which are not covered by this code) have been relying on the fact that the previous code remained in force as an excuse to delay rather than bringing their policies in line with the law as clarified by the Supreme Court last year. The publication of the statutory guidance will remove this excuse. Gender self-ID was never the law.

What happens after the code is laid?

Like most statutory instruments, the code is subject to agreement by “negative procedure”. This means that it will have legal effect 40 days after it is laid before Parliament, unless either the House of Commons or the House of Lords passes a motion to annul it. The last time the House of Commons annulled a negative statutory instrument was 1979.

Where can I find more information?

The code will be published on the Parliament website. As soon as possible after that, Sex Matters will publish analysis.

We have received an order in our case against the City of London on the Hampstead ponds. The case will be heard in the autumn. Trans lobby group TransLucent has said it intends to apply to intervene.

Our application for “expedition” – that is, for an early hearing – was turned down. So was the City of London’s application for a “stay” to slow it down. The judge, Mr Justice Bourne, recognised that “there is a real public interest in the issues in this claim”. But he said that the impact of the City of London’s decision-making remains to be seen: it might bring the claim to an end, or require it to be amended.

We don’t think it looks likely that we will end the claim, as the City of London is going full steam ahead in deciding to continue allowing trans-identifying men into the women’s pond, and trans-identifying women into the men’s.

The latest meeting of the Hampstead Heath, Highgate Wood and Queen’s Park Committee, which manages the ponds, was held on 12th May. During it, the proposed policy was voted on and approved by the elected members (it now needs to go forward to a different committee on 4th June). There was much talk about plans to spend £1 million on improvements to the changing areas, but barely any about the fundamental question of whether it is lawful to operate a service in this way in the first place.

One committee member asked about the forthcoming updated code of practice from the Equality and Human Rights Commission, and was told that “there is no version of the EHRC code that we can rely on at the moment”.

So while everyone else has been saying “wait for the guidance”, the City of London has proceeded as if there is no guidance at all. In fact the existing EHRC guidance from 2011 has not been withdrawn, and despite its flaws it explains the basics of the Equality Act that the City of London is trying to skirt around quite adequately (emphasis added):

Definitions

2.55 Sex is a protected characteristic and refers to a male or a female of any age. In relation to a group of people it refers to either men and/or boys, or women and/or girls.

2.56 A comparator for the purposes of showing sex discrimination will be a person of the opposite sex. Sex does not include gender reassignment or sexual orientation.

Direct discrimination

4.3 Direct discrimination occurs when a person treats another less favourably than they treat or would treat others because of a protected characteristic.

4.4 Direct discrimination is generally unlawful. However, it may be lawful in the following circumstances: in relation to the protected characteristic of disability, where a disabled person is treated more favourably than a non-disabled person; where the Act provides an express exception which permits directly discriminatory treatment that would otherwise be unlawful (see Chapters 11 and 13).

4.5 To decide whether a service provider has treated a service user ‘less favourably’, a comparison must be made with how they have treated other service users or would have treated them in similar circumstances. If the service provider’s treatment of the service user puts the service user at a clear disadvantage compared with other service users, then it is more likely that the treatment will be less favourable: for example, where a customer is refused service or a person’s membership of a club is terminated. Less favourable treatment could also involve being deprived of a choice or excluded from an opportunity.

Indirect discrimination

5.4 Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.

None of this is difficult or complex.

The City of London’s position is that the men’s and women’s ponds are not single-sex spaces, and that is it therefore is not using the exceptions at Schedule 3 Part 7 of the Equality Act at all. It says:

“Whilst there is a risk of challenge to this option on the basis of direct or indirect sex indirect discrimination, these are again fact-sensitive questions. The City Corporation cannot rely on the exceptions under Schedule 3 to the Equality Act 2010 to resist a claim, because the Men’s Pond and the Ladies’ Pond would not be being operated as single-sex spaces. However, it is unlikely that this would amount to direct sex discrimination, as the relevant criterion for entry would in effect be one of lived gender, not biological sex. In other words, at least some biological men and some biological women would be able to access each of the Men’s Pond and the Ladies’ Pond.”

The committee that waved the policy through did not ask itself whether this analysis aligned with the Equality Act, as explained by the existing code. But even if it fell for such word games, we do not think the High Court will.

As Maya wrote last week inTimes Higher Education, at the heart of the High Court judgment in the judicial review brought by the University of Sussex is an Equality Act-shaped hole. The Office for Students’ investigation into its failure to protect academic freedom and free speech on campus had been sparked by thehounding of Professor Kathleen Stock, who had been accused of hate by activists for speaking up about misrepresentations of the Equality Act. The High Court overturned the regulator’s £585,000 fine punishing Sussex for infringing on academic freedom and freedom of speech by adopting a policy in 2018 banning so-called transphobic propaganda from its campus and pledging to discipline those committing “transphobic abuse”.

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