In recent months, the Equality and Human Rights Commission (EHRC) has been issuing guidance and statements on sex and gender that have made headlines and caused concern across the equality and human rights sector. But amid the political noise, one crucial legal truth is being consistently ignored — sometimes deliberately so:
The EHRC’s Codes of Practice are not legally binding.
They do not carry the force of law. They do not override legislation. And they do not amend the Equality Act 2010.
This fact is not a technicality. It is fundamental to understanding the role of the EHRC and the limits of its authority, particularly when its interpretations are being used to justify policy shifts that may have discriminatory effects.
What are the EHRC’s Codes of Practice?
The EHRC has the power, under the Equality Act 2006, to issue Codes of Practice that offer guidance on how to comply with the law, specifically the Equality Act 2010. These Codes are intended to assist organisations, employers, and service providers in understanding their duties under the law.
They can be taken into account by courts and tribunals, but they are not binding. This is confirmed by the EHRC itself, which states that while the Codes provide practical guidance, they do not impose legal obligations.
What does this mean in practice?
It means that the Codes are advisory, not prescriptive. They are non-statutory. They do not determine what the law is, but instead offer one interpretation of how it might be applied in specific contexts.
(4)A failure to comply with a provision of a code shall not of itself make a person liable to criminal or civil proceedings; but a code—
(a)shall be admissible in evidence in criminal or civil proceedings, and
(b)shall be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.
This is particularly important when the EHRC’s guidance strays into politically sensitive territory, such as the use of single-sex spaces or the treatment of trans people under the Act.
When the EHRC publishes updated guidance or commentary, some organisations and media outlets present it as though the Equality Act itself has been redefined. But the Equality Act 2010 has not changed. The EHRC and the Supreme Court have no power to amend legislation — that can only be done by Parliament.
Why does this distinction matter?
Because relying on EHRC guidance as if it were binding law can result in unlawful or discriminatory decisions.
Public bodies, employers and service providers have legal duties under the Public Sector Equality Duty (PSED) and under other human rights obligations. If they take actions based solely on EHRC guidance — particularly where that guidance may be contested or reflect a narrower interpretation of the law — they risk breaching those duties.
In the current climate, where trans inclusion in services, education, and public life is under renewed attack, some are using EHRC statements to justify regressive policies. But courts do not treat EHRC Codes as definitive. They may consider them, but only as one possible interpretation. And the EHRC’s current leadership has faced widespread criticism from human rights bodies, legal experts, and equality organisations for straying from its duty to promote and uphold all protected characteristics.
What should policymakers do?
If you are drafting or reviewing policy related to sex, gender, or any protected characteristic, you should:
- Refer to the Equality Act 2010 itself: this is the legislation you must comply with.
- Understand that guidance is not law: the EHRC’s views do not override your legal duties.
- Seek independent legal advice: particularly from lawyers with expertise in equality and human rights law.
- Consider the wider legal framework: including obligations under the Equality Act 2006, the Human Rights Act 1998, and the European Convention on Human Rights.
We are in a moment where politically influenced guidance is being presented as a neutral legal fact. That is dangerous, not only for marginalised groups like trans people, but for the integrity of the rule of law itself.
Now, more than ever, policy must be grounded in law, not political spin.