By Joanne Lockwood (she/her) FIEDP FRSA FPSA — Written from lived experience, not from the sidelines.
Yesterday I wrote about the afternoon Britain’s equality regulator spent in front of a Commons committee, and the people whose lives were debated while they sat somewhere else. Today I want to look at the single idea doing the most work in its new Code of Practice — and the one that came apart fastest under questioning.
It is the idea that you can tell.
That somebody, somewhere — a receptionist, a leisure‑centre attendant, another customer — can look at a person and know, reliably enough to act on, whether they are male or female. Almost everything else in the Code’s approach to single‑sex services rests on that quiet assumption. And on Tuesday, MP after MP picked it up, turned it over, and watched it fall apart.
The question nobody could answer
The Liberal Democrat Christine Jardine put it plainly: if you challenge someone at the door of a single‑sex space, and there is — as the Code itself admits — no document in the UK that reliably proves a person’s sex, how does the challenged person prove anything at all? “How do they prove it?” she asked. The answer never came.
Nadia Whittome went at it from the other side. The Code suggests staff might act on a person’s “physique or physical appearance, behaviour or concerns raised by other service users.” So she asked the obvious question:
“Is it height, build, hairy legs, face shape?”
Dr Stephenson reached for an anecdote — the drunk man who wanders into the women’s toilets and is told, “Mate, I think you are in the wrong room.” We all make these judgments all the time, she said.
But that is exactly the problem. The drunk‑man story works precisely because it is easy and rare. Stretch it into a standard that service providers must operate, every day, on sober strangers who have done nothing wrong, and it stops being common sense and starts being something else: a licence to size people up and decide who belongs.
A standard you cannot write down is not a standard. It is permission to guess.
A test the Supreme Court never wrote
Here is the part that matters most, and the part almost no coverage has made clear.
Throughout the session, the Commission’s refrain was: we don’t make the law, we only explain it. And on the headline question, that is true. The Supreme Court, in For Women Scotland, decided that “sex” in the Equality Act means biological sex. The EHRC did not invent that, and could not have wished it away.
But the judgment did one narrow thing: it settled the meaning of a word. It did not tell anyone how to read that word off a stranger in a corridor. Legal commentators across the spectrum agree the ruling gave no practical guidance on running single‑sex services and no test for determining who is who.
So where did “physique, physical appearance, behaviour” come from?
It came from the EHRC. That wording is the Code’s own — reported from the draft by the BBC and The Times months ago. It is not a quotation from the Supreme Court. It is the regulator’s chosen method for operating the Court’s ruling.
That distinction is the whole game. “We are only following the law” cannot cover a test the law never asked for. When Whittome said the appearance test was “purely a product of the EHRC,” she was right.
The law settled what sex means. It did not hand anyone a way to read it off a stranger’s face. That part, the EHRC wrote itself.
The stereotypes we were supposed to be leaving behind
And look at what the test actually asks people to do.
To judge a stranger’s sex on sight is to judge it against a mental picture of how men and women are supposed to look. Too tall. Too broad. Voice too low. Jaw too strong. Doesn’t move right. As Whittome put it:
“These are the same stereotypes that women have been trying to escape.”
The Liberal Democrat Alex Brewer made it personal, and devastating. She is, in her own words, a woman with a gender‑neutral name and short grey hair. She has been called “sir.” She has been asked if the children are her grandchildren. So she asked the room: at what point does someone get to stop her at a door and say, “Excuse me — are you actually a man?”
That is the reach of this test. It does not catch only trans people. It catches butch women, gender‑non‑conforming men, women with PCOS or facial hair, disabled people, intersex people — anyone whose body does not match a stranger’s expectation. A regulator that builds its guidance on appearance has built a tool that polices everyone, and humiliates the people who least fit the template.
I want to be fair to the bind the EHRC was in. The Court handed it a line — biological sex — and an impossible reality: no way to prove it. Faced with that, the honest thing to say would have been, this cannot be operated by inspecting people, so don’t. That is roughly what I argued the Code should have said when it could still have chosen dignity. Instead, it reached for “common sense.”
“Maybe common sense is the wrong term”
Which is where the afternoon delivered its quietest, sharpest moment.
Brewer pointed out that “common sense” has a history. A few hundred years ago it was common sense that the earth was flat. Two hundred years ago it was common sense that women were too emotional to vote. “Common sense,” she said, “is not actually that common.”
And Dr Stephenson — to her credit — conceded it:
“Maybe common sense is the wrong term.”
That is the regulator letting go of its own frame in real time. Because once “common sense” is gone, what is left is the thing the Code keeps trying not to name: a judgment about other people’s bodies, made by strangers, with no document, no training and no appeal.
That is not a workable test. It is a checkpoint with the sign taken down.
And now what?
The Code is still not law. There is still time to ask the question the session never got a straight answer to: how, exactly, is this meant to be done — and to whom?
If you run a service, that is the question to sit with. Not who do we turn away, but have we just been told to build a checkpoint, and is that really what we want to be? The most defensible policy is almost never the one that inspects the most people. It is the one that does not put its staff in the business of guessing.
Read the test. Ask who it catches. Say so out loud — while saying so still counts.
Tomorrow, the promise the Code makes to everyone it turns away — and what happens when you go looking for it.
Hold the rope.
Joanne Lockwood (she/her)
The Inclusive Culture Expert
Website: seechangehappen.co.uk | Podcast: Inclusion Bites
Creator of The Trans Inclusion Toolkit and Diagnostic and Founder of The Inclusion Bites Academy.
#InclusionBites #PositivePeopleExperiences #SmileEngageEducate
Part two of The Dignity Gap. Quotations are from the transcript of the 9 June Women and Equalities Committee session. The Code’s wording is as reported from the draft laid before the equalities minister. Tomorrow — Part three: “The Door Marked Exit.”