On 21 May 2026, the Government laid before Parliament the Equality and Human Rights Commission’s draft updated Code of Practice for services, public functions and associations (the “Code”) which follows the Supreme Court’s judgment in For Women Scotland.
Key changes in the draft updated Code
The draft Code reflects the Supreme Court’s decision in For Women Scotland and confirms that, for the purposes of the Equality Act 2010, a Gender Recognition Certificate does not change a person’s sex. It also confirms that references to “sex”, “woman” and “man” under the Equality Act 2010 mean biological sex, biological woman and biological man.
As a result, the draft Code states that if trans people are admitted to a service intended for the opposite sex, that service will not be treated as a single-sex service under the Equality Act 2010. It also notes that admitting trans people to such a service could amount to sex discrimination against people of the excluded sex, or harassment of those permitted to use the service.
Assessing whether separate or single-sex services are justified
The draft Code provides further guidance on the factors service providers must consider when deciding whether to provide services separately or on a single-sex basis. Service providers must consider whether the approach is a proportionate means of achieving a legitimate aim and ensure there is a fair balance between:
- the benefits of offering the service as a separate or single-sex service;
- the needs of those who are accessing the service; and
- the impact on those who are excluded from accessing the service.
For single-sex facilities, such as toilets and changing rooms, the draft Code advises service providers to offer both single-sex and mixed-sex facilities where possible. However, it recognises that alternative arrangements may not always be reasonably practicable or could undermine the service being provided due to factors such as the physical constrains of the building or the disproportionate financial cost of implementing such changes.
That said, for services which are necessary for everybody, such as toilets, it is made clear that it is very unlikely to be proportionate to put a trans person in a position where there is no service for them to use and if that occurs, they are likely to be subjected to gender reassignment discrimination.
In addition to guidance on separate and single-sex services, the draft Code also addresses:
- when menopause can amount to a disability under the Equality Act 2010; and
- how conduct relating to breastfeeding may constitute harassment on the grounds of sex under the Equality Act 2010 (provided the statutory test is met).
What does this mean for services and employers?
Importantly, the draft updated Code applies to service providers, public functions and associations. It does not provide guidance for employers which is contained within the EHRC’s statutory Employment Code of Practice. However, the EHRC has indicated that it intends to update the Employment Code of Practice to reflect developments in employment law and to provide guidance for employers following For Women Scotland. No timetable has yet been given, although it is anticipated that the updated Employment Code will broadly reflect the approach taken in the draft Code.
Parliament has 40 days to review the draft Code and if it is approved, Parliament will issue a commencement order confirming the date for when the Code will come into force. While it remains possible that the draft Code could be revised again before it is finalised, significant changes appear unlikely given that the draft Code was first submitted to the Minister for Women and Equalities in September 2025.
The draft Code of Practice can be found here: Equality Act 2010: Draft Code of Practice for services, public functions and associations, 2026 - GOV.UK
James Pitts comments:
The draft Code provides helpful guidance for service providers, public functions and associations following the Supreme Court’s significant decision in For Women Scotland and the EHRC’s interim update, which left many organisations uncertain about how to balance the rights and needs of different service users when considering whether to provide services on a separate or single-sex basis. In light of the draft Code, service providers, public functions and associations should now review any policies in place relating to the provision of separate or single-sex services. Employers may also wish to consider reviewing their own policies and procedures in relation to the provision of separate or single-sex services at this point in time, rather than waiting for the EHRC to update the Employment Code of Practice, as they also remain bound by the Supreme Court’s interpretation of the Equality Act 2010 and should ensure that their approach reflects the current legal position.
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