01.06.2026

On 21 May 2026, the Equality and Human Rights Commission (EHRC) laid before Parliament a draft updated statutory Code of Practice for services, public functions and associations (the Code). Provided that Parliament does not disapprove the Code within the relevant 40-day period, it will come into force in its current form.  

The Code incorporates various significant updates to the existing 2011 version, including numerous practical examples. Perhaps the most controversial aspect of the updates relates to the provision of separate and single-sex services, taking into account the 2025 judgment in For Women Scotland Limited v The Scottish Ministers, in which the Supreme Court decided that references to “woman”, “man” and “sex” in the Equality Act 2010 (the Act) mean “biological woman”, “biological man” and “biological sex”.

The Code is not aimed at employers; it relates only to services, public functions and associations. There is a statutory Code of Practice on Employment, but this has not been updated since September 2015, and there is currently no timetable for Government producing a revised version. Given the pressing matter of what employers are now to do about separate and single-sex facilities, particularly workplace toilets and changing facilities, Make UK has, for some time, been urging the Government/EHRC to publish detailed guidance for employers dealing with this issue (even if this is outside a full revised Code of Practice). 

Key points to note about the revised Code

The Code reinforces the Supreme Court’s ruling, in reflecting its interpretation of the terms “woman”, “man” and “sex” and also in making clear that a Gender Recognition Certificate does not change a person's legal sex for the purposes of the Act.

The Code includes updated sections on separate and single-sex services for men and women (which service providers can provide within certain narrow exceptions under the Act), and illustrates this with practical examples. Notably, the Code says that if a service provider operates a separate or single-sex service under one of the exceptions 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 Act. 

However, trans people continue to be protected from direct and indirect gender reassignment discrimination (as well as from sex discrimination by association or perception and from harassment related to sex). The Code emphasises the importance of proportionality and making decisions on a case-by-case basis. It makes clear that if a service provider is considering providing a separate or single-sex service, it should consider its approach to trans people’s use of such a service. It also confirms that, in the case of services which are necessary for everybody such as toilets, it is very unlikely to be proportionate to put a trans person in a position where there is no service that they are allowed to use.

Where do employers stand?

Whilst there is currently no specific guidance for employers on the difficult issue of employee toilets and changing facilities, they cannot simply ignore the issue; their obligations under the Act, as interpreted by the case law, continue to apply. In addition, employers must comply with the requirements of the Workplace (Health, Safety and Welfare) Regulations 1992. These Regulations set out requirements for the provision of specified numbers of ‘suitable and sufficient’ toilets with suitability meaning that “separate rooms containing conveniences are provided for men and women except where and so far as each convenience is in a separate room the door of which is capable of being secured from inside”.  A recent High Court case took the view that the meaning of men and women here is biological men and biological women; we will have to wait to see if appeal courts take the same approach. 

Generally, the current case law is not very helpful. The For Woman Scotland judgment is not an employment-related case and recent tribunal and court cases specifically dealing with toilet facilities in the workplace (none of which are binding on employers as they are only first instance decisions) have produced inconsistent findings.  

Employers therefore find themselves in a challenging position, and whilst the Code does not apply to them directly, there has been significant interest in whether it can shed any light on workplace issues. Unfortunately though the Code is of limited assistance, particularly because it interprets parts of the Act that relate to service providers only, including the exception providing a defence in some circumstances to discrimination claims arising from the provision of separate or single-sex services.  

Nevertheless, it seems that employers can take certain things from the Code. Given the Code’s position that separate or single-sex services are limited by biological sex, there may well be a similar direction of travel with regard to workplace toilets and changing facilities (noting also the recent High Court case mentioned above). That said, the Code emphasises the Act’s protection of trans people, and its guidance on legitimate aims and proportionality should be of interest to employers considering indirect discrimination issues. More generally, it remains important that employers ensure provision for all employees so that no one is left without necessary facilities, for example by way of offering mixed-sex facilities, open to all service users, alongside separate or single-sex facilities.

How we can help

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.

In addition, and more generally in the area of EDI, our HR and consultancy team can provide a suite of products including general awareness training for employees and specific training for your HR and leadership teams.

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