28/01/2026
The Equality and Human Rights Commission has quietly stepped back from its own guidance on trans inclusion after it triggered legal challenge and widespread concern, a retreat that exposes how fragile and politicised the current regulatory environment has become.
Earlier this month the EHRC published interim advice on single s*x spaces following the Supreme Court’s ruling on the definition of s*x in the Equality Act. Almost immediately the guidance was seized upon as proof that trans people could now be routinely excluded from workplaces schools and public services. Employers were told exclusion was the safest option. Trans people were told their presence itself was now a legal risk.
That reading was never accurate and the Commission’s decision to place the guidance under review has confirmed it.
The Supreme Court judgment addressed a narrow question of statutory interpretation. It did not remove gender reassignment as a protected characteristic. It did not instruct organisations to adopt blanket exclusions. It did not rewrite how proportionality or justification works in equality law. Those principles remain intact and central.
What changed was the tone of the regulator.
The interim guidance collapsed complex law into crude instruction. It treated trans inclusion as an exception to be justified rather than a reality to be accommodated within the law. It encouraged defensive decision making driven by fear of litigation rather than careful balancing of rights. In practice it pushed organisations toward exclusion even where no lawful basis existed.
Legal experts and campaign groups warned that the guidance overstated the effect of the court ruling and risked unlawful discrimination. Within days the Good Law Project confirmed it was preparing a legal challenge. Shortly afterwards the EHRC confirmed the guidance was under review and would be reconsidered under new leadership.
That sequence matters.
Regulators do not retreat unless they know their position is vulnerable. The Commission has said a revised statutory code will be developed with consultation and parliamentary oversight. Until then the previous guidance should not be treated as settled law or authoritative instruction.
The damage however has already been done. Trans people report being challenged in toilets barred from changing rooms and told to justify their presence at work. None of this was mandated by law. It flowed from a regulator framing one protected group as a problem to be managed.
Anti trans organisations have used the brief window before the review to declare victory. They have claimed the law now requires exclusion and that regulators are simply being forced to soften the message. That too is false. The law has not changed in that way and the EHRC has not confirmed those claims.
What this episode reveals is not legal clarity but institutional instability. Human rights law depends on careful interpretation restraint and trust. When a regulator issues guidance that inflames rather than clarifies it undermines all three.
The Equality Act was designed to balance rights not rank them. It requires context evidence and proportionality. It does not reward blanket rules or panic driven policy. Any future guidance that forgets that will face the same fate as the last.
For now the position remains what it was before the interim guidance appeared. Trans people are protected under the Equality Act. Employers must make lawful proportionate decisions based on real circumstances not ideology or headlines. Courts decide cases. Guidance does not rewrite reality.
The question is no longer what the law says. It is whether those tasked with upholding it are willing to do so without turning one group’s existence into a regulatory experiment.
At this point it is worth explaining, plainly and without ideology, why transgender people exist in biological terms, because much of the public debate is operating on an outdated and incomplete understanding of human development.
Human s*x development does not happen in a single moment. It unfolds in stages during pregnancy, on different timelines, under different biological controls.
In the first weeks of gestation all embryos follow the same basic developmental pathway. Go**ds, internal ducts, external ge***al tissue and the nervous system begin from a shared template. S*x differentiation only starts later and it does not occur everywhere in the body at the same time.
External ge***al development happens relatively early. Between roughly weeks 6 and 12 of pregnancy, ge***al tissue differentiates under the influence of hormones, particularly androgens such as testosterone, and the sensitivity of androgen receptors in the body. This is the period when ge***al s*x is established and later observed at birth.
Brain development relevant to s*x and gender does not occur on that schedule. The brain continues to develop throughout pregnancy and well after birth. Crucially, regions of the brain involved in body perception, identity, and self-recognition are shaped later in gestation, during different hormonal windows, and through different receptor systems than those governing ge***al formation.
Because these processes are separated in time and mechanism, they can diverge.
If hormone exposure, receptor sensitivity, or timing differs during the later stages of neural development, the brain can develop s*x-typical patterns that do not align with the s*x assigned based on external anatomy at birth. This is not speculative. It is consistent with what is already known from endocrinology, developmental biology, and neuroscience.
We see similar principles clearly in inters*x variations. Conditions such as androgen insensitivity syndrome or conge***al adrenal hyperplasia demonstrate that chromosomes, go**ds, hormones, anatomy, and neurological development can and do vary independently. S*x in humans is not a single switch. It is a system.
Neuroscientific research has repeatedly found that certain brain structures and functional patterns in transgender people align more closely with their gender identity than with their s*x assigned at birth. No single study proves everything. Biology rarely works that way. But across decades, methods, and populations, the same pattern appears: gender identity has a biological basis rooted in brain development.
This is why transgender people appear across cultures and throughout recorded history, including in societies with no concept of modern gender politics. It is why repression does not eliminate trans people. It is why punishment, stigma, or denial do not make them disappear. You cannot socially engineer away a developmental outcome.
When people say “trans women are not women” they are usually reducing s*x to one visible trait observed at birth and ignoring the rest of human biology. That is not scientific rigor. It is simplification for comfort.
Biology does not draw the neat lines politics wants it to. Human development is complex. Variation is expected. Transgender people are not exceptions to biology. They are one of its outcomes.
Understanding this does not require belief or ideology. It requires accepting that the science moved on decades ago, even if parts of public debate did not.
