EHRC Code of Practice consultation

The Equality and Human Rights Commission has launched a consultation to update its ‘Code of Practice’ following the Supreme Court’s judgement on For Women Scotland vs. The Scottish Ministers.

The EHRC’s Code of Practice is primary guidance for employers, sporting bodies, schools, services open to the public (e.g. hospitals, restaurants, shops, refuges, pubs) and other groups to interpret their obligations under the Equality Act 2010.

After the consultation is complete and the CoP amended where deemed necessary, it will be submitted to the Minister for Women and Equalities for approval and laying in Parliament. If approved, it acquires statutory status: it becomes law.

The consultation is open to contributions from individuals, legal professionals and organisations. The EHRC will consider every response. We therefore urge you to take part, which you can do so here:

https://www.smartsurvey.co.uk/s/EHRC-code-of-practice-consultation-2025/

It closes 11:59pm on Monday 30th June 2025 (in six weeks).

If you wish to consider your answers while reading the updates, you can download the survey questions for Individuals and Legal Professionals or for Organisations.

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The consultation will focus on general changes and those to six specific chapters of the code only. The chapters are as follows:

Code-wide changes
Terminology changes applicable throughout the Act.

Chapter 2 – Rights under the Equality Act
Status of Gender Recognition Certificates, Gender Reassignment/Sexual Orientation  protected characteristics, how someone can be asked for their birth sex, how ‘birth sex’ is defined.

Chapter 4 – Direct Discrimination (ACAS on Direct Discrimination)
Discrimination by Perception, Previously included Case Law which is now considered superseded. Discrimination related to pregnancy/maternity.

Chapter 5 – Indirect Discrimination (ACAS on Indirect Discrimination)
Indirect Disctimination.

Chapter 8 – Harassment (ACAS on Harrassment)
Harassment related to Sex.

Chapter 12 – Associations
Ability for associations to restrict membership to a protected characteristic.

Chapter 13 – Exceptions
Single Sex services (hospital wards, refuges, accomodation), Competitive Sport and justifications thereof.

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The EHRC previously published interim guidance on the 25th April 2025 (roughly a week after the UKSC delivered their judgement on the 16th). We found some of the content troubling, in particular:

• trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex
• in some circumstances, the law also allows trans women (biological men) not to be permitted to use the men’s facilities, and trans men (biological women) not to be permitted to use the women’s facilities

In essence, this implies that the EHRC is suggesting there are circumstances where transgender people are not permitted to use gendered facilities of any sort. While they do then state that ‘where possible, mixed-sex […] spaces’ should also be provided, we do not endorse this as a substitute for permitting transgender people to use facilities congruent to their identified gender.

Further, above these lines, the guidance states that:

It is not compulsory for services that are open to the public to be provided on a single-sex basis or to have single-sex facilities such as toilets. These can be single-sex if it is a proportionate means of achieving a legitimate aim and they meet other conditions in the Act. However, it could be indirect sex discrimination against women if the only provision is mixed-sex.

We welcome the initial emphasis and agree there is sometimes reason to discriminate proportionately — but only so long as this achieves a legitimate aim. We would add that this is not the same as there always being a reason to discriminate completely (a view shared by former Supreme Court Justice Lord Sumption and former Supreme Court President Lady Hale). However, we feel that the final line of that paragraph possibly caveats this and makes the paragraph difficult to interpret.

It is with examples like this that we urge interested parties to contribute. Echoing our comments regarding trans voices being heard, we feel this is the most immediate route to action. Further, we urge the distribution of this, not just to those affected in the transgender community, but also to those who operate organisations that would be affected and those in the legal field.