EHRC launches consultation on updates to Code of Practice in line with the legal definition of sex under the Equality Act 2010

Consultation seeks views on updated guidance and examples for service providers

We reported recently on the Supreme Court judgment in For Women Scotland Ltd v The Scottish Ministers which stated that the words “sex”, “woman” and “man” in the Equality Act 2010 refer to biological sex. For further details of this judgment and the immediate response from the Equality and Human Rights Commission (EHRC) see our article: Supreme Court clarifies ‘sex’ definition in Equality Act 2010.

The EHRC has now launched its consultation on draft updates to its Code of Practice for services, public functions and associations in light of this judgment. The consultation is open until 30 June 2025 and can be accessed on the EHRC consultation page.

Human rights charity Liberty has issued a claim against the EHRC arguing that a six-week consultation period is insufficient and in breach of the EHRC's statutory duties as it fails to provide individuals and organisations adequate time to respond where the amendments are complex and the new Code of Practice will have “life-changing implications”. Liberty is seeking an extension of the consultation period to at least 12 weeks.

The Guardian reported last week that more than 20 leading charities and service providers have written a joint letter to the EHRC urging it to extend the consultation on the basis that the current timetable is too rushed for proper engagement and pointing out that the new code should be “robust, trusted, and balanced”. The letter states: “The proposed changes will likely have far-reaching consequences for our services and require gathering input from many different stakeholders and experts, including people who use our services…Responding to a consultation of this complexity requires time and resources that cannot always be easily found while we are delivering vital services.”

Proposed changes to the EHRC Code of Practice following Supreme Court judgment

Legal sex and protected characteristics

The definition of 'legal sex' has been updated throughout the Code of Practice to read: ‘Legal sex is the sex that was recorded at your birth.’ This is a change to the previous wording in the Code of Practice which included sex acquired by obtaining a Gender Recognition Certificate (GRC) in the term legal sex. The terms “birth sex” and “sex at birth” are also now used.

The draft Code of Practice states that a GRC does not change a person’s legal sex for the purposes of the Equality Act 2010. It includes new provisions stating that trans people are protected from gender reassignment discrimination whether or not they have obtained a GRC. It is also stated that trans people are protected from harassment related to sex and from direct and indirect sex discrimination based on their birth sex and their perceived sex in their acquired gender.

The draft Code of Practice includes new provisions clarifying that the protected characteristic of gender reassignment is separate to the protected characteristics of sex and sexual orientation.

The draft Code of Practice clarifies that trans men are protected as women for the purposes of the pregnancy and maternity provisions of the Equality Act 2010.

Guidance on seeking confirmation and evidence of birth sex

The draft Code of Practice includes a new section on asking people about their sex at birth. This makes clear that requesting this information may cause distress and be in breach of the human right to private and family life. Asking for information about birth sex should only occur where doing so is necessary and proportionate and should always be done with sensitivity, considering the person’s privacy and dignity. For example, a request for this information may be necessary in order to fulfil obligations under the Equality Act 2010.

On seeking evidence of birth sex, the draft Code of Practice states that in many cases it will be sufficient to ask someone to confirm their birth sex without seeking evidence. In other cases, it states that it will be reasonable to ask for evidence of birth sex. The draft Code of Practice notes that a person with a GRC may have an amended birth certificate and, in rare cases, discreet and sensitive further enquiries may be undertaken where proportionate to do so, as to whether they have a GRC (noting that it is an offence in some circumstances to disclose without consent that someone has a GRC or the birth sex of someone with a GRC).

Guidance on protections for trans people

A number of new examples are included in the draft Code of Practice to illustrate protections for trans people. These include:

• perceived sex discrimination – this refers to a trans woman who is rejected for a role in an association because she is assumed to be a woman.

• indirect associative sex discrimination – this refers to a trans woman being disadvantaged by the unsafe location of a meeting venue in the same way as women because she presents as a woman.

• harassment related to sex – this refers to a trans woman being subjected to comments from male staff members referring to her “time of the month” on the basis of her perceived sex.

Separate and single-sex services – proportionality guidance

The default position under the Equality Act 2010 is that it is unlawful to restrict a service to people of one sex. However, the Act contains exceptions which permit service providers to do so in some circumstances, including when the restriction is justified as a proportionate means of achieving a legitimate aim.   

The draft Code of Practice includes new content on the factors service providers should take into account when considering whether it is proportionate to provide separate or single sex services, including considering whether there is a fair balance between the benefits of offering the service to one sex only, the needs of those accessing the service, and the impact on those who are excluded from the service. The new section states specifically that service providers “should think about whether women’s safety, privacy and / or dignity would be at risk in the service if it was shared with men” and lists the following factors as likely to outweigh other considerations in the balancing exercise:

• whether women are likely to be in a state of undress;

• whether there will be limited ability for women to leave or to choose an alternative service;

• whether the service is provided a result of, or connected with, male violence against women; and

• whether the physical differences between men and women are relevant to the experience of the service and put women at a particular disadvantage.

The new content states that when considering the impact of a decision to offer a service to only one sex, service providers should consider:

• the impact on people of the opposite biological sex generally;

• the particular impact on trans people of the opposite biological sex;

• whether the disadvantage to trans people, and any other people who may be disadvantaged, outweighs the benefits of achieving the legitimate aim; and

• whether there is a less intrusive option than excluding trans people which would be proportionate.

New examples of separate sex facilities within the draft Code of Practice

The following new examples are proposed to be added:

A service provider operates a shopping centre and decides to renovate the centre. It initially intends to only provide separate-sex toilets to improve the safety and comfort of users. This disadvantages trans people because it means that a trans person cannot access a toilet catered towards their acquired gender. The service provider therefore decides to also provide toilets in individual lockable rooms which can be used by people of either sex.

A community group is opening a small advice centre. It decides to provide separate-sex toilets for women and men, and it repurposes the accessible toilet to be used as a mixed-sex toilet for anybody who does not wish to use the toilet for their biological sex. This is likely to be proportionate given the size and resources of the centre and takes into account the needs of all the potential service users.

Guidance on the provision of services based on acquired gender

The draft Code of Practice states that:

If a service provider (or a person providing a service in the exercise of public functions) admits trans people to a service intended for the opposite biological sex, then it can no longer rely on the exceptions set out at paragraphs 13.2.3 to 13.2.22. This means that if a service is provided only to women and trans women or only to men and trans men, it is not a separate-sex or single-sex service under the Equality Act 2010. A service like this is very likely to amount to unlawful sex discrimination against the people of the opposite sex who are not allowed to use it. A service which is provided to women and trans women could also be unlawful sex discrimination or lead to unlawful harassment against women who use the service. Similar considerations would apply to a service provided for men and trans men.

Guidance on excluding trans people from services offered to people sharing their sex registered at birth

The draft Code of Practice explains that service providers should consider their approach to trans people’s use of their services when deciding whether to provide a separate or single-sex service. It states that excluding a person from a service or from the use of communal accommodation provided for their own biological sex because of gender reassignment will only be lawful if it is a proportionate means of achieving a legitimate aim.

Examples include:

A trans man might be excluded from a women-only service if the service provider decides that, because he presents as a man, other service users could reasonably object to his presence, and it is a proportionate means of achieving a legitimate aim.

Group counselling sessions are provided for female survivors of domestic violence. The service provider excludes a trans man from the sessions because he presents as a man and the service provider is concerned that women service users could reasonably be alarmed or distressed by his presence.

What steps should organisations take before the EHRC Code of Practice for services is finalised?

The practical and ethical implications of the Supreme Court judgment and the updated EHRC Code of Practice will emerge over time and are likely to create new uncertainties and tensions for employers and service providers. It is important at this stage to take time to consider current policies and practices and how they might need to be changed.

Next steps for service providers

Organisations which offer separate and single sex services should consider contributing to the open consultation to ensure that their views and experiences are taken into account.

Reviewing policies and practices to assess where changes may be needed is a sensible first step. Any changes to policy and practice should be carefully considered before implementation. Where possible, service providers should consult key stakeholders and seek legal advice before finalising changes.

Service providers should be aware of the risk of claims on the basis of gender reassignment where long-standing approaches are changed and create what might be taken to be a hostile environment or violation of dignity for trans people. Equally, there is a risk of sex discrimination claims where service providers offer a single sex service but admit trans people in line with their acquired gender.

Next steps for employers

The EHRC have not yet set out a timeline for consulting on amendments to the Employment Code which in some places contradicts the Supreme Court judgment by stating that a trans person with a GRC should be treated in line with the their acquired gender.

We would expect to see amended guidance, including on the use of occupational requirements to be a man or a woman in certain roles.

In the meantime, employers should review their recruitment policies and documentation to ensure that they are clear what is meant by the terms man and woman, and provide sufficient reassurance to the organisation that appointees meet the requirement.

Where trans people have been recruited in line with their acquired gender, legal advice should be taken at an early stage as dismissal for this reason may well be unlawful.

Given the high profile nature of this case, it is possible that people will seek to bring claims on the basis of sex and gender reassignment, including claims supported by campaigning groups on either side of the current debate. 

If you would like to discuss any aspect of this article further, please contact our employment team on 0113 244 6100. 

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The information in this article is necessarily of a general nature. The law stated is correct at the date (stated above) this article was first posted to our website.

Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.