EHRC’s updated statutory code of practice laid before parliament

As we reported last year, 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 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. It has since updated the Code (EHRC: Statutory Code of Practice) which has now been laid in parliament. In summary, amongst other things, the amendments to the Code include:

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

  • ‘sex’ means “biological sex.” The ‘For Woman Scotland’ judgment uses the expression ‘biological sex’ to describe the sex of a person at birth;

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

  • the term ‘trans’ is used to refer to a person who has the protected characteristic of gender reassignment (replacing the outdated term ‘transsexual’);
     

• New content on gender reassignment:

  • children and young people are protected – there is no minimum age for the protected characteristic of gender reassignment; and

  • people with non-binary or gender fluid identities will only be protected if they meet the definition of gender reassignment as set out in the Act.
     

• 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: updated sections on competitive sport and separate and single-sex services for men and women.
   

• New content on separate or single-sex services in relation to gender reassignment; this new content specifies that:

  • If a service provider has a separate or single-sex service and allows trans people to use the service intended for the opposite sex, the service will no longer be a separate or single-sex service under the Equality Act 2010. It is possible to offer a mixed-sex service alongside a single-sex service.

  • It will not be unlawful discrimination because of gender reassignment to prevent, limit or modify trans people’s access to the service for their own sex, as long as doing so is a proportionate means of achieving a legitimate aim.

  • In relation to services which are necessary for everybody (such as toilets) trans people should not be in a position where there is no service that they are allowed to use.
     

• A new section on justification for separate and single-sex services which provides that:

  • service providers must demonstrate that providing separate or single-sex services is a proportionate means of achieving a legitimate aim (i.e. ensuring the safety/privacy of women and/or men);

  • In separate or single-sex services, a trans man will be excluded from the men-only service because his sex is female, and a trans woman will be excluded from the women-only service because her sex is male – as trans people are likely to be disadvantaged by this, service providers should consider whether the disadvantage outweighs the benefits of achieving the legitimate aim and whether there is a less intrusive option than excluding trans people.
     

• New content on policies and exceptions for separate and single-sex services which specifies that it will often be necessary for service providers to have a policy setting out whether, and if so how, separate or single-sex services will be provided.
   

• Updated content on communal accommodation, which specifies that exclusion based on sex or on gender reassignment is lawful only if it is a proportionate means of achieving a legitimate aim and the accommodation is managed in a way that is as fair as possible to both men and women.

The updated Code also includes new protections for women whose menopause has a significant impact on their everyday life, updates to reflect legislative changes on same-sex marriage and clarification that women who breastfeed are also protected from harassment.

The updated Code was laid in Parliament on 21 May 2026 and if Parliament does not disapprove the Code within 40 days, the government will set a date for it to come into force.

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

The updated Code applies to services, public functions and associations but the EHRC has suggested it will update its guidance for employers (the equivalent statutory Employment Code of Practice) in due course to reflect developments in the law.

The updated Code provides much needed guidance, particularly in relation to the provision of single-sex facilities and services. However, service providers and employers should take care not to solely rely on guidance as this will not justify an incorrect interpretation of the law. We recommend taking specific advice, tailored to your individual circumstances, if you are concerned about these issues.