The Equality and Human Rights Commission (EHRC) has finished updating its Code of practice for services, public functions and associations (Code for Services) and has provided its updated draft to the Government for ministerial approval. Once the draft has been approved, it will need to be laid before Parliament for 40 days before it can be brought into force.

The consultation process

The EHRC’s delivery to Government of this updated Code for Services (which is not yet publicly available) follows two consultation processes. The first consultation, which ran for three months in late 2024, sought views on updates to the whole Code for Services. Following the Supreme Court’s ruling in For Women Scotland Ltd v The Scottish Ministers in April 2025 (which confirmed that references to “woman”, “man” and “sex” in the Equality Act 2010 mean “biological woman”, “biological man” and “biological sex”), the EHRC ran a further six-week consultation on proposed updates to sections of the Code which could be impacted by the ruling. Make UK submitted a response to this consultation outlining our various concerns with the draft Code, which in our view does not provide clear advice to employers on how to respond to the Supreme Court’s ruling (particularly bearing in mind their overlapping legal obligations to their workforce). Since the EHRC shared its updated Code with the Government, it has been reported that hundreds of organisations have signed an open letter to Government ministers expressing concerns that the guidance on single-sex spaces which was included in the original draft is unworkable.

Continuing need for updated employer-focused guidance

Whether or not the EHRC’s updated Code for Services is approved by the Government, it must be remembered that it is not actually aimed at employers. There remains, therefore, a pressing need for employer-focused guidance as a result of the ruling in For Women Scotland.

Back in 2024, the EHRC confirmed that it would start work on updating its Employment Code of Practice (dated 2015) once it had completed work on the Code for Services.  As well as the guidance now required on single sex spaces, the Code also needs updating to reflect developments in case law and legislation since 2015.

Make UK is concerned about the length of time which the EHRC is likely to require to update the Employment Code of Practice. Currently, the most urgent issue for employers in light of the Supreme Court ruling is what approach should be taken to toilet facilities (and where relevant changing facilities). All that employers currently have, aside from the For Women Scotland judgment, is the EHRC’s interim update (which ostensibly covers employers as well as service providers, public authorities, associations etc). However, this has been strongly criticised – even after corrections had to be made to it by the EHRC – and it seems that it will be out of date once the Code for Services takes effect.

In light of all of the above, Make UK has been pressing the Government and EHRC (including in our consultation response) for urgent, but well thought out, guidance for employers on toilet/changing facilities. We know that employers – including many of our members – are grappling with how they can act lawfully and be fair to different employees in their workforce. Employers require guidance about how to manage their obligations to all their employees, including trans and non-gender confirming employees, those who feel strongly about having ‘single-sex spaces’, and those with particular philosophical or religious beliefs.

How we can help

If this is an area in which your organisation would benefit from support, Make UK can help with how to adapt to the Supreme Court’s ruling. We can also provide a suite of products in the more general area of EDI, including general awareness training for employees and specific training for your HR and leadership teams.

If you are a Make UK subscriber, you can speak to your regular adviser with any queries you may have and/or to request further consultancy support. Make UK subscribers can also access guidance on a wide range of employment law topics including template policies and drafting guidance in the HR & Legal Resources section of our website.

If you are not a Make UK subscriber, you can contact us for further support. Please click here for information on how we can help your business.