EHRC CODE - Clarification about sex and special category data

[SingleSexSpacesInSchools]

https://www.equalityhumanrights.com/equality/equality-act-2010/codes-practice/code-practice-services-public-functions-and-0

10 June 2026
There have been questions about references to special category data in paragraphs 13.175 and 13.182 of the draft Code of Practice for services, public functions and associations (the Code). This information clarifies our position in the context covered by the draft Code. For additional information on the use of personal data and compliance with data protection law, read the guidance issued by the Information Commissioner’s Office.
The Code is clear that it is legitimate to collect data about sex from service users for purposes such as equality monitoring or service planning (Code 13.182). Public bodies need to gather evidence, such as data on service users, to inform their consideration of the Public Sector Equality Duty (PSED).
The Code also explains that there may be legitimate reasons for service providers, those exercising public functions and those running associations to ask individuals to confirm their sex, to ensure there is a lawful single or separate-sex provision of a service (Code 13.168).
In such instances, this should be done sensitively and with due respect for the individual’s privacy (Code 13.171 to 176).
Someone’s sex is not in itself special category personal data. However, if information gathered also reveals specific details about an individual’s health status or medical care, or the organisation uses the information to make for example, specific inferences about health, that would involve special category data. This may arise in some of the specific circumstances addressed in the Code.
All personal data, including any information specifically about a person’s sex asked for in the circumstances discussed in the Code, should be treated sensitively and in line with data protection law and the data protection principles.

Reminds me a great deal of Matt Lucas's impersonation of the Boris speech.

Burble with Panic.

Could somebody please translate this into English for me please

Translation: "We were wrong. Sex is not special category data. That would be ridiculous. But we're going to list a few other things that are special category data that may apply to people who also (obvioisly!) have a sex, and hope that distracts everyone enough to not notice our admission of error. Normal GDPR rules continue to apply. "

You are right. Buried in the word salad is the admission 'Someone’s sex is not in itself special category personal data'. I wonder if they will have to reissue the guidance.

I am fearful of this being a tactic. Get errors put into the document amd it goes in an endless loop of 40 day approvals… After all, the government has not withdrawn the current guidance despite a request from the EHRC

I agree - why did nobody check the the status of data on sex, before finalising the draft Code?

Were they all working from a Stonewall Law version of data protection laws, and therefore assumed that 'sex' was a special category?

Was there not even one person who pointed out the error? Nobody?

Or did someone do so, but was overruled, so the Code was published with a known inaccuracy?

Which, as Knotty says, fits in to the 'it's all soooo complicated' 'it's an evolving landscape' 'don't worry, there'll be another Code along in a few minutes' playbook

Great to have the clarification that sex is not special category data though. Thanks for sharing!

Quite.

A year they spent 'going carefully through it', where 'it' in real terms of difference was about 11 pages.

Not nearly carefully enough obviously. Who the hell is she employing on her team to make this kind of a mess? She urgently needs a more competent one.

She can play rolling games with the guidance for Labour's remaining time in office I suppose, but the law remains the law, it exists even if the guidance never does. It does however tell you a whole lot about the Labour govt's respect for law and for independent expert advice on how law works. Which is not at all their field.

Trans people might get hurty feelz if asked their biological sex so we must be discreet about it. This is why the Code was sat on for 9 mths, because we mustn't cause men in frocks (or any men) hurty feelz.
It's gobbledygook nonsense shoved into an otherwise clear Code that says sex means biological sex, that's the law, comply or get sued.

It's getting to the stage where I think the FWS legal judgment itself - which was written as if they intended non-lawyers to read it as well - is clearer simpler and easier for organisations to follow than the EHRC guidance.

According to Maya, the special category data was added at the last moment and Sex Matters themselves wrote the EHRC to withdraw it.

There's a bit at the end which they seem to have added at the very last minute about, they call it, 'asking about sex'. they throw in this bit about data protection GDPR which is not the Equality and Human Rights Commission's mandate - why should they be throwing other bits of law in there and what they say is that sex is special category data under GDPR. It isn't. Special category data is things like your religion, your political views, your sexual orientation.

People shouldn't be putting people on lists of their religion or their political views for obvious reasons, but people are often put on lists of their sex because it's just it's piece of information like your name, your address, your date of birth. Your sex is an ordinary piece of information which organizations use all the time. It's not special category data and they're wrong in law.

So, we've written to Bridget and said they should withdraw that bit of the guidance. It's not it's not about the Equality Act and it's wrong.

Above response was meant for @MarieDeGournay

agree - why did nobody check the the status of data on sex, before finalising the draft Code?

Was added at the last moment, apparently. So probably wasn't checked as thoroughly as the rest.

I am fearful of this being a tactic.

Hard to know for sure, but evidence points to it being a mistake. Sex Matters themselves where the ones who brought it to Phillipsson's/EHRC's attention.

So to be clear, this guidance, which states (incorrectly) that sex is special category data cannot be published with that statement in it. Their admission is pointless if they carry on anyway. At the moment it seems that is what they intend to do (unless I missed a withdrawal and reissue statement).

If the aim is to leave waters well muddied, that would certainly be a strategic decision.

It is striking that in 13.75 and to a lesser extent in 13.82, although the code begins by saying info about sex is likely to constitute special category data, the specific constraints on processing that they go on to state (must be held securely and not be retained longer than is reasonably necessary for achieving a legitimate purpose, access restricted to people who need it for a legitimate purpose) apply to all personal data, not just special category data.
So it is just those first sentences of each of the two clauses that are wrong. I wonder if just those sentences were added separately from the rest of the GDPR-related content.

I don't think it is strange or improper for the code to mention GDPR requirements, btw, even though the code relates to different legislation. It is intended to function as guidance, and it wouldn't achieve that aim if it arbitrarily excluded mention of highly relevant legal requirements that are bound to crop up in connection with the matters covered by the guidance.

There's part of me that feels that this was done in a rush because the Government had been making sure a fuss about was what the EHRC written acceptable (to TW) and couldn't find anything to justify the delay, so some recently graduated intern came up with this.

If it was that necessary they would surely have raised this with the EHRC when they first sent back the original guidelines saying they had to be changed.

And then when Sex Matters and others pointed out they couldn't talk about special category, they then had to come up with some rubbish such as they have written.

I dont even think it is a tactic. It is typical of this Labour Government. They get themselves in such a muddle trying to placate different groups within Labour that when they eventually publish something for the public it just doesn't make sense. Because it isn't for the benefit of the public, it is just another indication of which group within Labour won the latest internal feuding.

I just hope they delete it.

Or if there needs to be some reference to special category it is clearly spelt out that this does not refer to sex and gives clear examples of when and how it is applicable.

They have made complete idiots of themselves.

And as usual women are left waiting, yet again, to have their rights formally put in place.

I think that this is what in other contexts we call "weaponized incompetence". They could just get it right first time but they really don't want to.

Maya Forstater @MForstater

This from the @EHRC is just not good enough. How are users of the guidance to know to look up this "clarification" note. And it is still misleading. Organisations collect and share data on the sex of their customers all the time. It's not sensitive or special purpose data. And the fact that a man is inappropriately trying to go into the women's toilets doesn't make his sex sensitive data.

https://x.com/MForstater/status/2065038012216426680

But didn't Sex Matters say that the bit about special category status was inserted by a government body, not the EHRC? To what extent are the EHRC to blame?

They aren't.

But if the Government really thought this addition (only made it up at the last minute) they would have said this to the EHRC when they returned the original draft of the guidelines to the EHRC.

So obviously a last minute attempt to make it look like they had a good reason to delay approving the guidelines which they have had for months.