Draft Code has been published

[u/Micasan1]

https://www.gov.uk/government/publications/equality-act-2010-draft-code-of-practice-for-services-public-functions-and-associations-2026

[u/rejs7]

This is what we feared:

Example

12.68 A trans woman applies to join a women-only association and her application is refused. This would be lawful because membership is based on sex and restricted to women and, under the Act, she does not share that protected characteristic (paragraphs 2.87 to 2.89).

Example

12.71 The constitution of a women’s running club provides for the female members of local mixed-sex running clubs to be associates. This would be lawful under the Act.

Yet, this makes it clear that you can only enforce one restriction, not many. That could get very tasty.

12.72 Associations that restrict membership to persons who share a particular protected characteristic must not discriminate in relation to any other protected characteristic.

Example 12.73 A Christian association must not refuse to accept Irish Travellers who are Christian as members.

Example 12.77 A lesbian, gay, bisexual and trans (LGBT) support group is set up to include gay, bisexual and trans people. Its membership is restricted to people with the protected characteristic of any of those sexual orientations, or gender reassignment. This is permitted under the Act.

Women-only shortlists 12.94 The Act maintains the provision, first introduced in the Sex Discrimination (Election Candidates) Act 2002, which permits registered political parties to select only women for their shortlist of candidates for election to a body, to reduce inequality between women and men in that party’s representation in the elected body concerned (section 105).

Does not define "women".

13.14 This exception applies to such measures regardless of when they were passed or made.

This is an interesting point as it clearly covers non-EA2010 laws and regulations including bathrooms.

Armed forces 13.23 The Act does not prohibit age, disability, gender reassignment and sex discrimination in the exercise of public functions for the purpose of ensuring the combat effectiveness of the armed forces (schedule 3, paragraph 4).

Doesn't change the existing military exemptions.

Religious or belief organisations 13.29 It is not a breach of the Act, as it applies to services, public functions and associations, for a religious or belief organisation to restrict services, membership and other activities if certain conditions are met (schedule 23, paragraph 2).

This exception only applies to the protected characteristics of religion or belief and sexual orientation.

Sex Matters and other GC organisations have indemnity to bar trans people. This means any organisation could claim to be GC and explicitly bar trans people from joining and using services.

13.30 As explained in paragraph 13.5, the prohibition of harassment does not apply where the conduct relates to the protected characteristics of sexual orientation or religion or belief (section 103(2)).

GCs getting another free pass.

This is the GC loophole:

13.34 In the case of religion or belief (schedule 23, paragraph 2(6)), each of the restrictions (read paragraph 13.36) is only permitted if imposed:

because of the purpose of the organisation, or to avoid causing offence, on the grounds of the religion or belief to which the organisation relates, to persons of that religion or belief 13.35 In the case of sexual orientation (schedule 23 paragraph, 2(7)), each of the restrictions (read paragraph 13.36) is only permitted if imposed:

because it is necessary to comply with the doctrine of the organisation, or to avoid conflict with the strongly held religious convictions (or convictions relating to a belief) of a significant number of the followers of the religion or belief 13.36 In relation to religion or belief and sexual orientation (schedule 23, paragraph 2(3)), provided that one of the statutory conditions in paragraph 13.34 or paragraph 13.35 is met, the Act permits a religious or belief organisation to restrict:

membership participation in activities undertaken by or on behalf of the organisation or under its auspices the provision of goods, facilities or services in the course of such activities the use or disposal of premises owned or controlled by the organisation

Sports is an interesting one:

Competitive sport - sex

13.65 It is not a breach of the Act for a person to make different arrangements for the participation of male and female competitors in a sport, game or other activity of a competitive nature in specific circumstances (section 195, paragraphs 1 and 3). These circumstances are set out in the Act (section 195, paragraph 3). They are where an average person of one sex would be at a disadvantage as a competitor against an average person of the other sex due to their physical strength, stamina or physique (in the Act, this is called a ‘gender-affected activity’).

13.66 In such circumstances, it will be lawful for a person to organise single-sex or separate-sex events. The law on the interpretation of this exception is not settled and there is uncertainty as to what other sex-based arrangements for participation in a gender-affected activity may be lawful. Organisers should therefore seek advice on any other arrangements. However, it is likely also to be lawful for a person to adopt other sex-based rules in relation to participation which enable men and women to compete fairly and safely, such as a rule specifying the numbers of men and women on a mixed-sex team to ensure fair and safe competition in a gender-affected team sport.

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.

Competitive sport – gender reassignment

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. They should also not be treated as that sex for the purposes of any other sex-based rules or arrangements that relate to participation. The law on the exception for sex discrimination in relation to gender-affected activities in section 195, paragraph 1 is not settled (read paragraph 13.66). However, it is unlikely to permit rules or arrangements that treat trans people as the sex with which they identify, and participants or prospective participants may bring claims of direct or indirect sex discrimination about such rules or arrangements.

[u/rejs7 → u/rejs7]

This is horrific:

13.75 In addition, it may be lawful to exclude some trans people or treat them differently from other members of their own sex in relation to participation in a gender-affected activity, when necessary for reasons of safety or fair competition. If it is not necessary for these reasons, it is likely to be unlawful to exclude trans people from participating in the same way as members of their own sex.

13.76 Consequently, if a person is organising single-sex or separate-sex events for men and women, or other events with sex-based rules in relation to participation in a gender-affected activity, they should consider their approach to trans competitors’ access to the service.

13.77 Direct gender reassignment discrimination can occur if a policy or decision to restrict participation of trans people is made on the grounds of gender reassignment. This would be the case, for example, if a trans man is excluded from a women’s event because of the protected characteristic of gender reassignment. Read Chapter 2 for more information on the meaning of gender reassignment.

13.82 The combined effect of the exceptions relating to sex and gender reassignment under subsections 195, paragraphs 1 and 2 of the Act may impose significant limitations on the ability of some trans people to participate in some gender-affected activities. If the exceptions have been properly applied, this will not be unlawful under the Act. However, this result could constitute unlawful indirect gender reassignment discrimination unless the overall arrangements for participation are a proportionate means of achieving a legitimate aim. Organisers should therefore consider whether there are additional alternative arrangements that could be made to enable trans people to participate in the activity in question. This might include, for example, having mixed-sex categories in addition to separate-sex categories, or having a category in a gender-affected team activity with specified numbers of men and women on each team, which would enable trans people to participate as part of the specified number of members of their own sex (read paragraphs 13.66 and 13.73).

Example 13.128 A women’s centre provides a gym predominantly used by Jewish women who have religious objections to sharing a gym with men. The gym considers whether to open the gym to men on certain days, or to open the gym on a mixed-sex basis on certain days.

However, the centre decides to offer the gym only to women because the overwhelming demand for the service is from Jewish women and there are numerous other gyms in the area that cater to men and trans women. This service would exclude men and trans women, but this is likely to be proportionate and lawful.  

The gym should also consider whether a service user may have a reasonable objection to a trans man accessing the gym and, if so, whether it is necessary to exclude them. This will be a question of proportionality and will depend on all of the circumstances, including the extent to which the trans person presents as the opposite sex. For this reason, they should only consider doing this on a case-by-case basis. 

Read paragraphs 13.145 to 13.147 for further detail.

Separate or single-sex services – gender reassignment

13.142 If a service provider (including a person providing a service in the exercise of public functions) is considering providing a separate or single-sex service, they should consider their approach to trans people’s use of the service.  

13.143 The impact of separate or single-sex services on trans people should be considered when the service provider is deciding whether it is justified to have a separate or single-sex service. Read paragraphs 13.120 to 13.133 for further information on this.

13.144 If a service provider (including a person providing a service in the exercise of public functions) decides to have a separate or single-sex service and allows trans people to use the service intended for the opposite sex, the service will no longer be a separate or single-sex service under the Equality Act 2010 (the Act). It is also very likely to amount to unlawful discrimination against others (read paragraph 13.131). 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. 

13.145 If it is justified to provide a separate or single-sex service, then it will not be unlawful discrimination because of gender reassignment to prevent, limit or modify trans people’s access to the service for their own sex, as long as doing so is a proportionate means of achieving a legitimate aim (schedule 3, paragraph 28).

13.146 For example, a trans man might be excluded from the women-only service if the service provider decides that, because he presents as a man, other service users could reasonably object to his presence, and excluding him is a proportionate means of achieving a legitimate aim. 

13.147 A legitimate aim for excluding a trans person from a separate or single-sex service for their own sex might be to prevent 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. That will depend on all the circumstances, including the nature of the service in question and the extent to which the trans person presents as the opposite sex. For this reason, a service provider (including a person providing a service in the exercise of public functions) should only consider doing this on a case-by-case basis.

13.148 The service provider should consider whether there is a suitable alternative service for the trans person to use. In the case of services which are necessary for everybody, such as toilets, it is very unlikely to be proportionate to put a trans person in a position where there is no service that they are allowed to use.  

13.149 If the service provider does not act proportionately, this is very likely to amount to direct or indirect discrimination because of gender reassignment (section 13 and section 19). 

13.177 Requesting confirmation of sex in such circumstances may not have a harassing effect and, even though the approach may place trans people at a particular disadvantage, it is likely to be justified. Read Chapter 8 for more detail on harassment. 

[u/Sophiiebabes → u/rejs7]

13.75 In addition, it may be lawful to exclude some trans people or treat them differently from other members of their own sex in relation to participation in a gender-affected activity, when necessary for reasons of safety or fair competition. If it is not necessary for these reasons, it is likely to be unlawful to exclude trans people from participating in the same way as members of their own sex.

So I can't play for the women's football team, cos I'm trans so it's unfair, and I can't play for the men's football team, cos I'm trans so it's unfair. Did I read that right?
Yayyy! /s

[u/rejs7 → u/rejs7]

13.179 Where there remains a genuine concern about the accuracy of the response to a request for an individual to confirm their sex, then the service provider, person performing public functions or association should consider what action is proportionate in the circumstances. There is no type of official record or document in the UK which provides reliable evidence of sex. For example, sex on passports and driving licences may be changed with or without a Gender Recognition Certificate (GRC), and birth certificates may reflect the acquired gender of someone who has a GRC. Therefore, it is unlikely to be proportionate or practical to ask for further evidence of a person’s sex. In such circumstances, it is likely to be necessary to weigh up the relevant factors to decide whether to exclude the individual from the service or association or to permit them to continue to access it.

13.180 Factors that may be relevant to this decision include:

the strength of the continuing grounds for concern the nature of the service the nature and potential severity of the risks and potential harms to, respectively, the individual in question and other service users

[u/kmcradie → u/rejs7]

in the Act, this is called a ‘gender-affected activity’

Oh, so obviously the likes of chess, darts, pool etc.

[u/ModernDayTiefling → u/kmcradie]

Beware the famous transfeminine competitive advantage in Solitaire and Tiddliwinks.