EHRC launches consultation on an updated statutory code of practice following the ‘For Women Scotland’ judgment

As we reported last month, the UK Supreme Court judgment in the ‘For Women Scotland’ case upheld a biological definition of sex for equality law purposes (our summary here). 

The EHRC has since launched a public consultation outlining its proposed updates to the statutory Code of Practice for services, public functions and associations on account of the Supreme Court’s decision. In summary, amongst other things, the proposed amendments to the Code include:

• Updated definitions: this updated content confirms that, for the purposes of the Equality Act 2010: 

  • ‘legal sex’ means “Legal sex is the sex that was recorded at your birth”; and 

  • ‘woman’ means “biological woman” and ‘man’ means “biological man” (meaning a person’s sex at birth).

• New content on gender recognition certificates: this new content confirms: 

  • that the Supreme Court ruled that obtaining a Gender recognition Certificate (GRC) does not change a person’s legal sex for the purposes of the Equality Act 2010;

  • a person’s sex remains their biological sex (i.e. sex at birth) whether they have a GRC or not (so a trans man with a GRC is a woman and a trans woman with a GRC is a man) in relation to the Equality Act 2010; and

  • trans people (with or without a GRC) are protected from discrimination because of gender reassignment and sex discrimination (based on their birth sex) and sex discrimination related to their acquired gender.

• New content about asking about sex at birth: this new content: 

  • confirms that, unless it is necessary and justified, asking a trans person about their birth sex may interfere with their human rights;

  • suggests questions about birth sex should be handled “sensitively”, in a way which does not cause discrimination or harassment (for example, not asking this question in public or in a rude, combative or offensive manner);

  • confirms people should usually only be asked to confirm their birth sex, rather than being asked to provide evidence of this and notes that birth certificates may not be a definitive indication of birth sex anyway because a trans person with a GRC can obtain an amended birth certificate in their acquired gender; and

  • highlights the legal provisions protecting privacy, including those contained in the Gender Recognition Act 2004 (which limit the disclosure of the fact someone has, or has applied for, a GRC without their consent) and under data protection law.

• Updated description of the protected characteristic of sexual orientation: this now specifies that a person who is attracted to people of the same sex is either a lesbian woman or a gay man.

• New/updated examples: there are various new or updated examples on sex discrimination by perception, sex discrimination - same disadvantage, harassment related to sex, and women-only associations.

• New/updated sections or content: these proposed changes include:

  • Updated sections on competitive sport, separate and single-sex services for men and women and separate or single-sex services in relation to gender reassignment;

  • A new section on justification for separate and single-sex services;

  • New content on policies and exceptions for separate and single-sex services; and

  • Updated content on communal accommodation.

The consultation will close on 30 June 2025.

Will the EHRC’s Employment Code of Practice be updated?

There is currently no suggestion of any plans by the EHRC to amend the equivalent statutory Employment Code of Practice, so employers who planned to wait for new EHRC guidance on the implications of the For Women Scotland decision in the workplace will likely be disappointed. 

On 21st May 2025, the Chair of the EHRC, Baroness Kishwer Falkner, spoke to BBC Radio Four’s Woman’s Hour and stressed that employers should not wait for new guidance from the EHRC before taking action in light of the ‘For Women Scotland’ decision and pointed to the EHRC’s interim update on the practical implications of the decision.