01.06.2026

Following the Supreme Court judgment in For Women Scotland Limited v The Scottish Ministers, the Equality and Human Rights Commission (EHRC) has laid before Parliament a draft updated statutory Code of Practice for services, public functions and associations (the Code). This Code is not aimed at employers. It relates only to the provision of services, public functions and associations. There is a statutory Code of Practice on Employment, but this has not been updated since September 2015. Make UK has, for some time, been urging the Government/EHRC to publish more detailed guidance for employers. In the meantime, although the “exceptions” included within the Code do not directly apply to the employment sphere, it is nonetheless of interest to employers given that their obligations under the Equality Act 2010, as interpreted by the Supreme Court, continue to apply regardless of whether the EHRC has published its updated employment-specific guidance.

Key points to note about the revised Code

In April 2025, 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 revised Code reinforces the Court’s ruling and reflects these terms and confirms that the term ‘trans’ is used to refer to a person who has the protected characteristic of gender reassignment. The Code also makes clear that a Gender Recognition Certificate does not change a person's legal sex for the purposes of the Act.

Trans people (i.e. people who are proposing to undergo, are undergoing or have undergone a process (or part of a process) to reassign their sex by changing physiological or other attributes of sex) have the protected characteristic of gender reassignment. They continue to be protected from direct and indirect gender reassignment discrimination, as well as sex discrimination by association or perception, and from harassment related to sex.

The Code includes updated sections on the provision of separate or single-sex services for men and women (as well as updated sections on competitive sport) and gives a wide variety of practical examples showing how service providers might apply it. It makes clear that if a service provider is considering providing a separate or single-sex service, they should consider their approach to trans people’s use of the service. Notably, the Code says that if a service provider decides to have 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 Act. It is however possible to offer a mixed-sex service alongside a single-sex service. A mixed-sex service must be open to all service users.

The Code emphasises the importance of proportionality and making decisions on a case-by-case basis.  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. It makes clear 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.

Note that the Code does not provide guidance to employers on the difficult issue of employee toilets and changing facilities. As well as complying with the Equality Act 2010, employers must comply with the requirements of the Workplace (Health, Safety and Welfare) Regulations 1992, which set out requirements for the provision of ‘suitable and sufficient’ toilets and changing facilities. Provision should always be made for all employees so that no one is left without facilities. There is not yet any employer-focussed EHRC guidance on this issue, and recent court cases have produced inconsistent findings. However, there are indications that the law may be moving in the direction that, where an employer provides single sex toilets or changing facilities at work, these should generally be limited by biological sex. We suggest that until there is greater clarity, you should take advice when dealing with this complex and sensitive issue on a case-by-case basis.

The Code includes new and updated examples relating to the various protected characteristics to help illustrate how discrimination can arise in practice. For example, it includes expanded guidance on disability discrimination and reasonable adjustments, and updated examples of harassment and indirect discrimination (for example, clarifying that women who breastfeed are protected from harassment). It also acknowledges that menopause symptoms and Long Covid can satisfy the legal definition of disability definition, and that menopause-related claims may be brought on disability, sex and/or age grounds.

The revised Code was laid before Parliament on 21 May following which there is a 40-day window for Parliamentary review. If Parliament does not disapprove the Code, the Government will set a date for it to come into force.

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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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