A regulator gone rogue?

The Equality and Human Rights Commission (EHRC) is facing a crisis of accountability, accused of repeatedly and sometimes aggressively overstepping its statutory remit, to force through contentious and legally contested guidance on transgender rights before its outgoing chair, Baroness Kishwer Falkner, steps down at the end of November 2025.

The EHRC, is meant to be the impartial guarantor of human rights in the UK, but is instead increasingly seen as a central protagonist in a culture war targeting the trans community. It has been seen to employ public pressure tactics, including newspaper articles and open letters, to push the government to approve its new, 300-plus-page statutory Code of Practice.

The current row is a culmination of a political and legal conflict that has seen ministers openly challenge the EHRC’s methods, parliamentarians, civil rights groups and trans advocacy groups express alarm at its implications for businesses, and a major High Court challenge dismantle its legal rationale.

For those unfamiliar with the way the EHRC has been seen to pivot under Baroness Falkner, the current crisis is the outcome of a steady shift in the watchdog’s ideological alignment, which has drawn the fury of trans rights groups while receiving the applause of anti-trans campaigners.

Four actions in particular should be looked at to understand the EHRC’s direction under Falkner:

1. Quitting Stonewall: The EHRC withdrew from Stonewall’s Diversity Champions scheme, citing value-for-money concerns. The decision was heralded by critics of the charity and recognised by advocacy groups as a critical breakdown in relations. This was seen as the first major shift that the EHRC took in moving away from the trans-inclusive position it previously held.
2. Advising on ‘Biological Sex’: Falkner wrote to the UK government, advising on amending the Equality Act 2010 to define “sex” as “biological sex“. This intervention was viewed as a highly politicised position, offering a blueprint for a change that trans organisations argued would undermine existing legal protections and institutionalise discrimination.
3. GRR Bill Reversal: The EHRC reversed its previously supportive stance on the Scottish Gender Recognition Reform (GRR) Bill. They stated it was “concerned” about the bill’s impact on the protection of women’s single-sex spaces and the coherence of the Equality Act 2010. This reversal provided crucial legal ammunition to the UK government, which ultimately used a Section 35 order to block the democratic will of the Scottish Parliament.
4. Intervening in the Forstater Case: The EHRC intervened in the employment tribunal appeal brought by Maya Forstater, whose case established that gender-critical beliefs are protected philosophical beliefs under the Equality Act. This intervention, prior to Forstater co-founding Sex Matters, was a high-profile move signalling the EHRC’s increasingly public support for the legal protection of gender-critical views, cementing its relationship with figures at the heart of the movement.

Following the UK Supreme Court ruling in April 2025, in For Women Scotland Ltd v The Scottish Ministers, the EHRC was tasked with providing statutory guidance on how organisations should interpret the judgement. Following initial guidance which was released mere days after the Supreme Court ruing, the regulator submitted a full code of practice to Equalities Minister Bridget Phillipson in the beginning of September 2025. However, and highly unusually, what followed was a politicised campaign of public lobbying.

In an unusual move for an independent regulator, Falkner, publicly urged Phillipson to “act with speed” to approve the guidance “as soon as possible.” Critics argue this external pressure is an attempt to bypass standard democratic scrutiny and reflects the pressure tactics often employed by political activist groups, such as Sex Matters, with which the EHRC chair has regularly been accused of having ideological ties with.

Crucially, this public urgency has been undermined by the EHRC’s own lack of forthcomingness. Government sources confirmed that officials were struggling to properly assess the lengthy document and blamed the watchdog for delays in providing necessary information. The difficulty in assessing the Code became clear following a leak of the draft guidance, which revealed that the only practical method of enforcement for trans-exclusive single-sex facilities would be for service providers – including staff at hospitals, cinemas, and local charities – to “police the appearance and gender presentation of all service users.” The guidance reportedly admitted this creates a “heavier burden” on small businesses due to the disproportionate financial costs of managing compliance.

It has also been revealed that the EHRC is refusing to publish its report on the 50,000+ public consultation submissions until after the Code of Practice has become law, effectively blocking MPs from scrutinising the foundational evidence.

The rush to secure approval is seen by many as an attempt by Baroness Falkner to cement her legacy on the issue before her tenure ends on November 30, 2025, and a new Chair, Dr. Mary-Ann Stephenson, takes office.

This has drawn sharp political rebuke, with ministers seeming to act as if Falkner has stepped on their toes. Equalities Minister Bridget Phillipson publicly urged the watchdog to focus on the regulatory process rather than on generating headlines. “A little less focus on public debate would be helpful,” Phillipson stated, making it clear that the government would not be rushed in scrutinising the legally complex document.

This move and others by the EHRC, has also sparked a backlash among MPs. Following the leak of the enforcement mechanism, the backlash intensified as the proposal requires staff to question individuals based on their looks or behaviour. Children’s Minister Josh MacAlister publicly warned that the government wanted to “avoid being in a position where toilets are being policed by people.”

Labour parliamentarians have written to the government, citing alarm from companies facing significant potential costs and a “minefield” of competing legal rights due to the possible guidance. Rachel Taylor MP, accused Falkner of having “chosen to ignore warnings about the contradiction between possibly being sued for challenging someone’s gender versus being sued for failing to“. Taylor went on to write that the “problem with the Equality and Human Rights Commission’s (EHRC) guidance was not that it failed to address every conceivable scenario, but that it set out fundamentally unworkable instructions to businesses that go far beyond what the supreme court actually ruled, and which places them at risk of costly litigation.”

The EHRC’s reputation has been severely damaged by revelations uncovered during the High Court judicial review brought by the advocacy group Good Law Project (GLP) (heard in November 2025).

The GLP is arguing that the EHRC’s earlier ‘interim update’ on the ruling – which instructed organisations to segregate trans people and was subsequently withdrawn – was “rushed,” “overly simplistic,” and “transphobic,” encouraging discrimination.

In stark testimony to the court, the hearing provided evidence of the EHRC hiding information and bypassing ministerial approval. It was revealed that the controversial interim guidance was drafted in under 24 hours, and Bridget Phillipson was given no sight of it before publication. This lack of due diligence was further confirmed by an FOI request by Trans Advocacy and Complaints Collective (TACC), which backed up the Minister’s claim that the EHRC “couldn’t even be bothered to finish an impact assessment for their new code of practice before submitting the new code to the Minister of Women and Equalities.”

The case also highlighted that the new guidance is not considered “fit for purpose” by the government itself. The EHRC’s proposed enforcement method, revealed in the leak, appears to mandate exclusion based on appearance, and has drawn intense fire from trans advocacy groups, who argue this creates a license to discriminate against all gender non-conforming women, including butch lesbians and women of colour. In a detailed court submission, the Equalities Minister’s legal team effectively tore apart the EHRC’s own legal logic, questioning arguments the watchdog was using to defend its position.

Because of the continued overreach of the EHRC, civil society groups released a joint statement in September 2025, signed by over 100 partner organisations, including Amelia’s Angels, to MPs across the UK, calling for proper Parliamentary scrutiny of the forthcoming Code of Practice. The core concern is that, under Section 14(8) of the Equality Act, if the Minister does not schedule a debate in Parliament within a 40-day window, the code will automatically come into force without a single vote.

The controversy now rests on two immediate decisions:

The Political Decision: Bridget Phillipson must decide whether to yield to the pressure and allow the automatic enactment of the Code of Practice or use her authority to schedule a full Parliamentary debate, thereby ensuring proper scrutiny.

The Legal Decision: The High Court is expected to deliver its judgement on the Good Law Project’s judicial review before Christmas. A ruling against the EHRC could have legal consequences for any organisation that has already implemented trans-exclusive policies based on the watchdog’s now-retracted interim advice.

A damaged legacy

The turmoil surrounding the new Code of Practice is more than just a political row; it represents a profound crisis of legitimacy for the UK’s human rights watchdog. Baroness Falkner’s final months have been marked by open defiance of ministerial oversight and a clear ideological agenda, culminating in the controversial push to enact legally complex guidance without proper democratic debate or adequate supporting documentation.

As a new Chair prepares to take office, the EHRC faces the difficult task of rebuilding public trust and demonstrating that its future focus will be on the impartial protection of all nine protected characteristics, rather than acting as a political lightning rod in the culture wars.