Unworkable:
A deconstruction of the Equality Act 2010:
Draft Code of Practice for services, public functions and associations, 2026
Rainbow Hospitality has produced a report outlining why the 2026 EHRC Draft Code is both unworkable and harmful to every person living in England, Wales, and Scotland.
The full report in available for download from the button below.
Executive Summary
It is Rainbow Hospitality’s considered opinion that there is no working definition of biological sex which does not exclude a disproportionate number of people. Therefore, the Draft Code as currently written cannot be deemed a legitimate end to achieve a proportionate means because it will systemically harm 2.2% of the UK population.
It is our belief, as develop throughout this report, that the UK Parliament never intended either in debate or enactment of the Equality Act 2010 and other legislation to impose a biological sex definition of sex in the UK. Instead, the evidence suggests conclusively that since 2004 Parliament has consistently laid out that sex is synonymous with gender, which as demonstrated in multiple areas of law is a broader conception that a biological one. If it were the will of Parliament they could at any time in any piece of legislation clarify their intent as such, but this has not occurred at any time in English or British legal history.
The matters because the UK Supreme Court itself has stated clearly that only the UK Parliament has the power to shape the conception of sex and gender under UK law, a point up held multiple times with reference to transgender and non-binary claimants. As such, we hold that the UK Supreme Court’s ruling in For Women Scotland either overstepped its own marks or ought to be seen as solely referencing the matter at hand and not impacting broader English, Welsh, and Scottish society.
The Draft Code as written is not workable because it seeks to impose intolerable policing on anyone who cannot pass an arbitrary inspection of their body. The Code expects businesses, service providers, and organisations to judge people based on their appearance, and if they do not pass that person’s assumptions and biases they will be challenged over their sex. This impacts everyone, and will be particularly devastating to transgender people who simply want to exist in peace without perpetually being outed. It is also not reason enough to justify blanket bans on trans people living affirmed lives utilising the same single sex spaces as their cisgender peers.
British society has come a long way since Section 28 was repealed. Same sex marriages, service in the armed forces, adoptions, and representation in Parliament as all significant milestones. Yet, if this Draft Code were to be left to stand as written it would mark the most significant roll-back of LGBTQI+ inclusivity in the UK since Section 28 was enacted. Fear alone cannot be used to justify exclusion, nor can it be used to justify denying trans people, intersex folk, and gender non-conforming people the right to assembly, sexuality, and a private life.
Trans people are not a problem in need of a For Women Scotland solution.
British society has come a long way since Section 28 was repealed. Same sex marriages, service in the armed forces, adoptions, and representation in Parliament as all significant milestones. Yet, if this Draft Code were to be left to stand as written it would mark the most significant roll-back of LGBTQI+ inclusivity in the UK since Section 28 was enacted. Fear alone cannot be used to justify exclusion, nor can it be used to justify denying trans people, intersex folk, and gender non-conforming people the right to assembly, sexuality, and a private life.
Trans people are not a problem in need of a For Women Scotland solution.
In light of the evidence laid out in this report, we ask four things:
· A withdrawal of the Draft Code
· Legislation which amends the EA2010 to state that sex covers trans people and extends protections to intersex and non-binary people
· Sexuality be defined under the EA2010 as a matter of conscience and personal understanding of self, not solely rooted in biological assumptions about the human body
· Legal recognition for trans inclusive philosophical beliefs on the same standing as gender critical philosophical beliefs
Further, the draft code as written poses the following risks:
· If the draft code’s aim is to enable businesses, service providers, and organisations navigate the issues surrounding sex as a protected characteristics it cannot ignore the potential criminal impact this will have on GRC holder customers, service users, and members. Is it legitimate to expect a transgender woman with a GRC to potentially perjure herself when she plays sports, accesses healthcare, or uses single sex services.
· W v W (nullity: gender) [2001] 1 FLR creates enough uncertainty about the underlying principles behind the concept of biological sex as to make the Draft Code’s definition unworkable in practice. There is no viable definition of biological sex as outlined in the Draft Code which does not exclude a significant minority from using single sex spaces, services, and organisations through unintended consequences.
· As per T.H. v. The Czech Republic 33037/22 if the draft code were to come into force English, Welsh, and Scottish businesses could expose themselves to claims under Article 8 of the European Convention of Human Rights. This judgement was passed down in September 2025, 5 months after For Women Scotland.
· The draft code as written could expose businesses, service providers, and organisations to claims of discrimination on the grounds of genetic features under the Human Rights Act and Article 21(1) of the Charter of Fundamental Rights of the European Union.
· The draft code as written is at odds with the Windsor Framework because it abnegates the rights of Irish and other EU foreign nationals to the respect and dignity provided by legal mechanisms in their birth country to change their gender and/or sex and not face discrimination or indignity from service providers, businesses or organisations in UK. The draft code also calls into question the UK’s ability to host Irish and other international based sports teams which have transgender people playing on them.
· As per the State Immunity Act 1978 embassies and consulates in England, Wales, and Scotland could become the only spaces in which trans inclusive single sex activities, services, and provisions are viable because they would be immune from sex related claims brought under the EA2010.
· The Draft Code risks opening up asylum claims from residents of England, Wales, and Scotland in EU countries, because as per N v Sweden if someone is perceived as not conforming to societal, traditional, and legal gender roles there is a risk of ill-treatment and social restrictions.
· The Draft Code extends beyond currently globally recognised codes with respect to same sex sport, and as written will exclude trans men, non-binary people, and intersex people from all sports because a) their testosterone levels will be too high for same sex women’s sports and b) they will not be able to compete alongside biological men as framed in the Draft Code.
· The Draft code is that it could invite a challenge under The Treaty on the Functioning of the European Union (TFEU) articles relevant to competition law, specifically TFEU Article 101(1d) and 101 (1e) in relation to restrictions on trans people playing professional sport.
· The Draft Code’s working definition of maternity protection includes transgender women and intersex women who breastfeed, meaning that unless breastfeeding trans women are going to be explicitly excluded under the Draft Code the comparator for them is another biological woman who breastfeeds. This also undermines the basic principle that the pregnancy and maternity protected characteristic only applies to biological women.
