EHRC guidance on gender to face legal challenge in High Court

The case is brought by three individuals, who have been granted anonymity, alongside Good Law Project (GLP), and the hearing will take place on 12 and 13 November 2025.

The three individuals and GLP argue in their judicial review challenge that the EHRC guidance is unlawful, and breaches transgender people’s human rights.

The EHRC interim guidance was published after the Supreme Court ruled in April 2025 that "sex” means by “biological” sex under the Equality Act 2010.

In the judgment, Supreme Court judges emphasised that the ruling should not disadvantage or remove protections for transgender people, and that the definition should only apply in the context of the Equality Act.

In the days immediately following the Supreme Court judgment, the EHRC published guidance on the “practical implications” of the ruling. The guidance was recently removed from the EHRC’s website. The three individuals and GLP argue this guidance was unlawful.

The guidance included instructions that transgender people should be excluded from single-sex toilets corresponding to their lived gender. The three individuals and GLP say that this is an incorrect statement of the law and goes against the Supreme Court’s statement that its ruling should not disadvantage or remove protections for transgender people.

They argue that this guidance has had a serious adverse impact on transgender and intersex people, with employers and service providers in some cases excluding them from toilets regardless of their anatomy, stage in transition, appearance, or what facilities they had previously used.

The three individuals include an intersex person who was recorded as female at birth and has lived her whole life as a woman, but has now been told by her manager that she is unable to use the women’s toilets.

The other two individuals are both transgender, fully transitioned and had previously used workplace toilets corresponding to their gender without issue, but have now been told by their employers that they must use the toilets of their “biological sex” - which they say has caused distress and concerns over their privacy.

The three individuals and GLP also argue that the interim guidance is rushed and inaccurate and puts transgender and intersex people at risk of being outed or singled out by their employers, and that the EHRC is failing to encourage and support an inclusive and respectful society.

They say that these issues amount to breaches of the Equality Act 2006 and the Human Rights Act 1998.

The grounds of claim are:

• The guidance contains an incorrect analysis of law, and as a result encourages unlawful conduct by those who follow its directions.
• In publishing the guidance, the EHRC acted in breach of statutory duties under the Equality Act 2006.
• The analysis of the statutory provisions reflected in the guidance cannot be read compatibly with transgender people’s rights under the European Convention on Human Rights, and the Human Rights Act.

In response, the EHRC has said that the material published is not formal guidance and does not represent official policy, and that it does not endorse or permit unlawful conduct.

The claim was issued in June 2025, and in July a November date was scheduled for a rolled-up hearing, where a judge will hear both the preliminary stage and the full substantive hearing at the same time

Jo Maugham, founder and executive director of Good Law Project, said:

“Our case is that the EHRC both acted irresponsibly and got the law wrong in rushing out a statement that obliged service providers to exclude trans people from single sex spaces. We think it needs to return to its really important job of protecting human rights and abandon what trans people experience as its ideologically motivated crusade.

“At Good Law Project, we have been inundated with stories about the devastating impact this guidance has had on the lives of trans and intersex people. The EHRC suggests this claim is now ‘academic’ because they have withdrawn their guidance – but its effects are lingering and appalling."

GLP is represented by Leigh Day solicitors Tiffany Bucknall, Anna Dews, Ricardo Gama, Lily Hartley-Matthews and Andrew Lord. Tiffany Bucknall said:

“Our clients are understandably very concerned about the lasting impact of the EHRC’s interim guidance, which was hastily published in the wake of the Supreme Court’s judgment in For Women Scotland, and which has had a real effect on the lives of many trans people in the UK.

“The EHRC has an important role in promoting a society in which people’s human rights are respected and valued, and its guidance is relied on by people and businesses across the country. It is therefore important that the EHRC is held to account when information is published which our clients argue is unlawful and which breaches trans and intersex people’s fundamental human rights.”