The Equality Act: 15 years old today!

On 8th April 2010, the Equality Act received royal assent. The landmark new law drew together legislation addressing race discrimination, sex discrimination and disability discrimination that had built up over the 1960s, 70s and 90s. Protection for transsexuals had been introduced in 1998 and extended in 2008. 

As the Labour government at the time pointed out, the existing piecemeal legal framework was “complex, inconsistent and often difficult to understand”. The intention was that the act would harmonise and bring this all together into a single piece of legislation that would be accessible and straightforward for employers, service providers, employees and customers.

The Equality Act protects people against discrimination and harassment based on nine protected characteristics: sex, age, race, disability, marriage and civil partnership, pregnancy and maternity, religion or philosophical belief, sexual orientation and gender reassignment. In order to bring all the strands together it contains a large number of exceptions which permit discrimination in relation to particular protected characteristics in particular situations. 

The Equality Act was not intended to make it difficult to provide single-sex services, accommodation, charities or women’s sports. It did not legislate for legal “gender self-id”, nor did it require that men and women were always treated the same or prohibit “misgendering”. 

Trouble with guidance

During the introduction of the Equality Act in the House of Lords, the government’s spokesperson said:

“We expect that more straightforward law will also enable the Equality and Human Rights Commission to draw up simpler practical guidance.”

But the statutory guidance that was produced by the Equality and Human Rights Commission (EHRC) did not spell out clearly enough what the protected characteristic of sex meant in light of the Gender Recognition Act that had been passed in 2004. Was sex still about bodies, or must it now be taken to be about identities or certificates? When it came to the exceptions which make it lawful for service providers to provide single-sex and separate-sex services, the guidance was not clear and practical at all.

It started out well. The first draft of the service provider’s code, published in January 2010 for consultation, stuck tightly to the act. It said that single-sex and separate-sex services are lawful if they meet one of several conditions and are a proportionate means to a legitimate aim. It also said that the prohibition against gender-reassignment discrimination does not apply as long the treatment is a proportionate means to a legitimate aim. 

The guidance went on to explain that this meant that service providers should consider the needs of transsexual people as those of the women and men using separate and single-sex services. It didn’t say they should allow men into women’s spaces.

But during the course of the consultation this clear, simple guidance was removed and replaced with something else. 

In its consultation report, the EHRC said:

“Various transsexual stakeholder groups responded to the formal consultation and also participated in the parallel consultation events taking place on the nonstatutory guidance. Feedback from the consultation events was incorporated into the employment and services codes where appropriate, particularly on issues of confidentiality, use of single sex services and the legal definition of transgender.”

The trans advocacy organisation Press for Change gave the EHRC an annotated version of the draft code of practice which may have been influential in the changes that appeared in the final draft. 

The statutory code of practice for service providers that was published in 2011 embroidered the Equality Act, following the suggestions of the transsexual groups. It invented a legal requirement to “treat transsexual people according to the gender role in which they present”.

It said that individuals should be allowed to use opposite-sex services based on their “gender role” and could be excluded only on an exceptional case-by-case basis. 

It also made the unworkable recommendation that any decision to exclude an individual transsexual from an opposite-sex space should take place only after discussion with other users, but also while maintaining confidentiality and taking care to “avoid a decision based on ignorance or prejudice”. 

Other groups and the general public were not consulted on these additions to the code of practice.

The myth grows

From there the myth grew that the Equality Act 2010 gives trans people the legal right to use opposite-sex facilities and services. 

The Government Equalities Office produced guidance together with another trans advocacy group, Gendered Intelligence, which said that good practice was to “try not to assume someone’s gender simply by their appearance” and “assume everyone selects the facilities appropriate to their gender” and that “refusing to allow a woman to use female facilities because staff perceive her to be male” was unlawful direct discrimination. 

The idea that service providers must allow people to self-identify into opposite-sex services based on their gender identity, from toilets to rape-crisis centres, also meant that other people must be kept quiet: “trans women are women” and “trans men are men” and anyone who disagrees can be called a bigot. The organisations that had encouraged the EHRC to produce the unworkable guidance then went around telling organisations that it was ignorant, prejudiced, and “transphobic” to even talk about the issues clearly.

The Forum on Sexual Orientation and Gender Identity in Post-School Education, made up of the trade union UNISON, the University and College Union, the Higher Education Funding Council for England, the Equality Challenge Unit and several other associations, brought out guidance which said: 

“It is professional misconduct, and in many cases it may be a criminal offence to pass on information about a trans person’s gender identity without their consent.”

The Equality Challenge Unit brought out guidance for universities which advised universities to check their curriculum to “ensure that it does not contain transphobic material”. “Unacceptable or unwanted behaviour” and “intrusive questions” were to be dealt with as serious disciplinary offences; “transphobic propaganda” was banned. 

Stonewall picked up transgender campaigning in 2015, adopting a definition of “transphobia” that included refusing to accept a person’s gender identity. It claimed that: 

“When toilets are gendered, in general trans men have the legal right to use the men’s toilets, and trans women have the legal right to use women’s toilets.” 

Its scheme advising and training employers on compliance with its misinterpretation of the law soon covered 25% of the UK workforce, including staff at the EHRC, Ofcom, most of Whitehall and the Scottish and Welsh governments.

In July 2018 the Conservative government launched a consultation on reforming the Gender Recognition Act 2004 to make it easier to get a gender-recognition certificate. It was not clear what the relationship between the GRA and the Equality Act was, but the reforms would remove any safeguards from the awarding of certificates. Announcing the consultation in Parliament, minister Penny Mordaunt said: 

“Trans women are women. Trans men are men. And that is the starting point for the GRA consultation. And it will be its finishing point too.” 

This time the consultation did not take place in obscurity. Groups of women, Stonewall-dissident gays and lesbians, rebel academics and feminist lawyers responded by meeting on Mumsnet, on social media and in person to criticise the proposal and call for protection for single-sex services and women’s sport underpinned by the Equality Act. They faced intimidation and attacks for doing so, as well as harassment and discrimination at work.

Winning the Equality Act back 

Over the past five years groups and individuals have made concerted and increasingly effective efforts to speak up, to use the Equality Act to defend the right to do so, and to unpick the bad guidance. We are winning battles in getting back to the purpose of the Equality Act, which is to be clear and simple about protecting everyone’s rights. 

• In December 2019 Maya Forstater lost her employment tribunal claim to have the “gender critical” belief that sex matters declared a protected belief under the Equality Act. It was instead declared “not worthy of respect in a democratic society”. The next day JK Rowling sent her famous tweet and entered the debate.
• In May 2021 Ann Sinnot sought permission to judicially review the code of practice that would have forced the EHRC to change the section on single-sex services. However the High Court refused permission. The judge said that since the code of practice said that services “should,” not “must” (treat transsexual people according to the gender role in which they present), it was not unlawful. Nevertheless the EHRC distanced itself from prescriptive guidance that said men who self identify as women “must” be treated as women, and it made clear that in its view a women-only service was permissible. 
• In June 2021 Maya Forstater won her Employment Appeal Tribunal case, which established that “gender critical” beliefs that sex matters are covered by the protected characteristic of philosophical belief in the Equality Act. This enabled people to speak and write about the issues with less fear of being disciplined or fired from work. 
• In February 2022 For Women Scotland won its first judicial review on appeal against the Scottish government, which had sought to redefine the meaning of women to include men who identified as women in counting the number of women on public boards in Scotland. This was ruled unlawful by a judge as it “conflates and confuses two separate and distinct protected characteristics”. This judgment made clear that sex in the Equality Act is not a matter of self-identification. 
• In April 2022 the Equality and Human Rights Commission (EHRC) released new guidance on single-sex and separate-sex services. The new guidance made it clearer that service providers and employers are allowed to offer facilities to women and men separately wherever this is a “proportionate means of achieving a legitimate aim” and that policies can explicitly be on the basis of biological sex.
• In October 2022 Sex Matters launched a petition to make the Equality Act clear by clarifying that the Gender Recognition Act 2004 does not change the definition of sex in the Equality Act. It was signed by more than 100,000 people, and there was a debate in Westminster Hall in June 2023. 
• In December 2022 For Women Scotland lost its second judicial review against the Scottish government, challenging its decision to try to define women in the Equality Act (for the purpose of public boards) as including men with gender-recognition certificates. FWS vowed to fight on. 
• In April 2023 Baroness Falkner, the chair of the EHRC, wrote to the government supporting the call to clarify the Equality Act. She said: ”It has not been straightforward for service providers and employers to apply the law, including in areas such as sport and health services” and that the debate has become so polarised and contentious that civil debate is inhibited. She added that the EHRC has come to the view that if “sex” is defined as biological sex for the purposes of the Equality Act, this would bring greater legal clarity in several important areas. 
• In May 2024 the government launched a call for evidence on incorrect guidance on single-sex spaces and gender self-identification. It said that “In some cases organisations believe they are required to allow self-identifying transgender people to access” single-sex services for the opposite sex, and that this is wrong in law. It withdrew the earlier Government Equalities Office guidance. 
• In October 2024 the EHRC published an updated version of its code of practice for service providers for consultation, removing the previous advice that service providers “should treat transsexual people according to the gender role in which they present”. But although it has been improved, the proposed code remains vague and overcomplicated, and suggests legal rights for trans-identifying individuals and legal obligations for service providers that do not exist. Following public consultation, the final version is still to be released. 
• In November 2024 the Supreme Court heard the appeal in the For Women Scotland case, which asked it to determine what sex means in the Equality Act – self-identification had already been ruled out, but does sex relate to bodies or pieces of paper? Sex Matters and a consortium of lesbian groups intervened in support of FWS. Amnesty International intervened in support of the Scottish government. The EHRC also intervened. 
• In January 2025 Stonewall made a quiet change to its definition of “transphobia”. The previous longstanding definition, which included “denying a transgender person’s gender identity or refusing to accept it”, was dropped. 
• In February 2025 the case of Sandie Peggie v NHS Fife was heard at the Dundee employment tribunal. Peggie is bringing a case under the Equality Act for sex discrimination and harassment and belief discrimination for NHS Fife’s policy and conduct allowing trans-identifying male staff into the female changing room. This is one of several such cases. 
• In April 2025 the Office for Students fined Sussex University more than £0.5m for breaching its responsibility to uphold academic freedom when it adopted the Equality Challenge Unit guidance that banned so-called “transphobia” based on a misinterpretation of the Equality Act.

The judgment from the Supreme Court in the For Women Scotland case is expected imminently.

It will then be up to the government and the Equality and Human Rights Commission to make sure that the Equality Act delivers on its promise of being a straightforward law with simple, practical guidance.