The equalities watchdog has launched a consultation on updates it has made to its code of practice for services, public functions and associations, following last month’s Supreme Court’s judgment on the definition of sex.
On 16 April, the court made the legal position on the definition of ‘sex’ in the Equality Act 2010 clear: a woman is a biological woman, and a man is a biological man.
Last year, the Equality and Human Rights Commission ran a 12-week consultation on wider revisions to the code, reflecting a range of legislative developments and case law since it was first published in 2011.
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In light of the Supreme Court’s ruling in For Women Scotland v Scottish Ministers, and the widely expressed desire for authoritative guidance on its implications, the EHRC has now opened a fresh consultation on a number of further updates.
Having incorporated them into the relevant sections of the code of practice, the EHRC is asking for views on whether these updates clearly articulate the practical implications of the judgment and enable those who use the code to understand and comply with the Equality Act.
Baroness Kishwer Falkner, EHRC chairwoman, said: “Since the judgment was handed down, the demand for authoritative guidance has been obvious. It’s our job to provide that.
“It is important that our code is both an accurate interpretation of the law and clear to those who use it. So we want to hear views on the clarity of these updates and urge all interested parties to respond to the consultation over the next six weeks. We will consider every response carefully and amend the draft code where necessary.
“People with protected characteristics should never be discriminated against or harassed when using a service. Where services are provided on a single-sex basis, that needs to be done in a way which is consistent with the law, which protects the rights of all service users and which ensures everyone is treated with respect and dignity. It’s vital that service providers know what they need to do to comply with the law, and that service users have confidence that every provider is doing so.”
The Supreme Court ruling has led the EHRC to change the legal definition of sex, which applies across the code of practice.
The old wording says: “Legal sex is the sex that was recorded at your birth or the sex you have acquired by obtaining a gender recognition certificate (GRC).” The new wording reads simply: “Legal sex is the sex that was recorded at your birth.”
The consultation opens today (20 May) and closes on 30 June 2025. The EHRC initially planned only a two-week consultation, but bowed to pressure to make it six weeks.
The EHRC will review responses received and make necessary amendments to the draft code of practice. It will then be submitted to Bridget Phillipson, the women and equalities minister, for approval and laying in Parliament, before it acquires statutory status.
Falkner added: “This is a complex area of law, which bears on the rights of people with the protected characteristics of sex, sexual orientation and gender reassignment. We know that there are strongly held views across our society, both about how the law should be interpreted and whether it reflects the right balance between those rights. So if everybody’s rights are to be protected – as the Supreme Court confirmed the law intends – service providers and their legal advisers need help to navigate these challenges.”
Falkner concluded: “The consultation launched today will help ensure our services code of practice is a useful and authoritative guide. Please tell us if you think it could be clearer or more helpful. That way, whether you’re a shop owner or the chair of a local sports club; the manager of a hotel or a hospital; an HR professional or a solicitor – you will have guidance to follow so you can be confident that you’re upholding the law.”
What is changing in the code of practice?
The EHRC’s consultation asks respondents to consider draft updates it has made to the code of practice. Other than the aforementioned change to the definition of sex – which applies across the code – these appear in six affected chapters of the code. The changes include the following:
Chapter 2 – Who has rights
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- New content explaining that GRCs do not change people’s legal sex, and what protections trans people have, whether or not they have a GRC.
- New information about how requests about sex at birth should be made and new content on defining sex at birth.
- Updated description of sexual orientation, which specifies that a person attracted to the same sex is either a lesbian woman or a gay man.
Chapter 4 – Direct discrimination
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- A new example on sex discrimination by perception, in the context of sex and gender reassignment.
- Revised content on pregnancy and maternity discrimination, in the context of trans men.
Chapter 5 – Indirect discrimination
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- A new example which explains how indirect sex discrimination can occur when people experience the same disadvantage, even if they do not share the same protected characteristic, in the context of sex and gender reassignment.
Chapter 8 – Harassment
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- An updated example on harassment related to sex, which explains how harassment can occur based on a perceived protected characteristic, in the context of sex and gender reassignment.
Chapter 12 – Associations
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- A new example on women-only associations, which explains when applications can be lawfully refused in the context of sex and gender reassignment.
Chapter 13 – Exceptions
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- An updated section on competitive sport.
- An updated section on how single-sex services can be provided for men and women.
- A new section on the justification for single-sex services, including potential legal implications of providing only mixed-sex services.
- New content on policies and exceptions for single-sex services, which explains that service providers may need to develop policies regarding their provision.
- An updated section on single-sex services in relation to gender reassignment, which explains that service providers should consider their approach to trans people’s use of services when deciding whether to provide a single-sex service.
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