The Equality and Human Rights Commission’s (EHRC) updated Code of Practice for services, public functions and associations has now come into force, providing important guidance for organisations navigating the provision of single-sex services following the Supreme Court’s decision in For Women Scotland Ltd v Scottish Ministers.
While the Code does not change the law itself, it is an important development. Courts and tribunals can take the Code into account in legal proceedings brought under the Equality Act 2010, making it a significant resource for organisations seeking to ensure compliance with their legal obligations.
Bellevue Law Founder and Principal Florence Brocklesby has commented on the implications of the new guidance and what it means for service providers.
The Significance of the Supreme Court Judgment
The updated Code follows the Supreme Court’s ruling in the For Women Scotland case, which confirmed that references to “sex” within the Equality Act 2010 refer to biological sex rather than gender identity, including where an individual holds a Gender Recognition Certificate.
This judgment has generated considerable discussion and prompted organisations across a range of sectors to review their policies in relation to single-sex services and facilities.
What Does the EHRC Code Say?
According to the Code, if a service provider admits trans individuals to a service intended for members of the opposite biological sex, that service will no longer be treated as a single-sex service for the purposes of the Equality Act.
Florence explains:
“The EHRC’s Code of Practice applies to service providers. It does not change the law relating to equality, discrimination and harassment, but is nonetheless legally significant because it can be used in evidence in legal proceedings brought under the Equality Act 2010.”
She further notes that where a provider permits trans women to access a women-only service, the provider may no longer be able to rely on the single-sex exemptions contained within the Equality Act. In some circumstances, this could create legal risks, including claims of unlawful sex discrimination or harassment.
Meeting the Needs of All Service Users
Importantly, the Code also recognises that organisations can take steps to meet the needs of trans people while maintaining lawful single-sex provision.
Potential approaches may include offering a combination of:
- Single-sex facilities;
- Gender-neutral facilities; and
- Individual facilities where appropriate.
The Code provides a range of examples designed to help organisations assess their options and make informed decisions based on their particular circumstances.
A Challenging Area for Employers and Service Providers
This remains one of the most debated areas of equality law and practice. Organisations may find themselves balancing competing rights, interests and expectations while seeking to comply with their legal obligations.
As Florence observes, there will inevitably be situations where it is difficult to satisfy all stakeholders. However, organisations would be well advised to familiarise themselves with the Code and carefully consider the guidance and examples it contains when reviewing their policies and procedures.
Florence’s comments on the new Code have also been featured in Edward Fennell’s Legal Diary, which discusses the implications of the guidance and the broader legal context. Read the article here:
👉 Edward Fennell’s Legal Diary
For advice on equality law, workplace policies or related legal issues, please contact the Bellevue Law team.
