Background and summary

Following the Supreme Court's decision in For Women Scotland in April 2025, which held that "sex" has a biological meaning under the Equality Act 2010, there has been considerable uncertainty about the practical implications for service providers (and indeed employers).

The Equality and Human Rights Commission’s Code of Practice for Services, Public Functions and Associations covers discrimination in services and public functions, as well as discrimination by associations. While the Code does not create legal obligations, it can be used as evidence in discrimination claims and is a factor for courts and tribunals to take into account when assessing whether conduct is lawful. The Code clearly needed updating after the Supreme Court’s ruling, and the EHRC received over 51,000 responses to its consultation on proposed changes.

As anticipated, the updated Code states that any single-sex services must be provided on the basis of “biological sex” following the Supreme Court’s ruling. Service providers who admit trans people to a single-sex service which does not match their biological sex are likely to lose the protection of the statutory exceptions against discrimination, meaning the risk of sex discrimination claims from users who object to the presence of trans people is higher. The Code also continues to recognise that trans people are protected from discrimination.

It is important to note at the outset that the Code does not apply to employers. There have been indications that the EHRC Code of Practice for Employers will also be reviewed, but no consultation has been launched yet and there is no timetable for this. The employment position, as far as it is currently known, remains as set out in our previous article, in which we considered single-sex facilities in the workplace following the High Court's decision earlier in 2026 on the EHRC's interim update.

Unlike the High Court decision, the Code does not appear to envisage that trans-inclusive services are permissible, instead steering providers towards gender-neutral provision alongside single-sex services where they can provide this.

Single-sex services: the core framework

The default starting point is that services are open to all, i.e. not provided to one sex only or on a single sex basis (to women and men separately). An exemption in the Equality Act allows a service to be restricted to one sex or provided on a single sex basis if this is a proportionate means of achieving a legitimate aim. The Code sets out a framework on this, explaining that a service provider must carry out a balancing exercise weighing the benefits of single-sex provision against the needs of those accessing it and the impact on those excluded – including trans people.

The Code states that some legitimate aims for single-sex provision might be ensuring the safety of women, or protecting the privacy and dignity of service users. Whether it will be proportionate is a fact-specific question to be determined based on each service provider’s individual circumstances. Those circumstances will include being able to provide the service appropriately to trans customers.

Where a provider concludes that it will provide a single-sex service, the Code makes clear that this must be limited to use based on biological sex. Below, we consider the practical implications of this in some common scenarios.

Practical implications for service providers

The Code's guidance on proportionality makes clear that not all single-sex services raise the same considerations, and that context matters significantly.

Toilets

While gender neutral toilets are now common, this remains the most prevalent example of a service which tends to be provided on a single-sex basis.

The Code states that single-sex toilets, where provided, should be used on the basis of biological sex and that service providers should make additional provision so that trans people are not disadvantaged. The Code envisages that a proportionate approach will often involve a mix of single-sex and gender-neutral options – catering to those who prefer single-sex provision while ensuring that trans people are not left without appropriate facilities. Service providers should consider carrying out an impact assessment to gauge the likely demand for facilities and should monitor the adequacy of their provision on an ongoing basis.

The Code includes a practical example of a shopping centre which provides gender-neutral toilets in individual lockable rooms with handbasins, in addition to single-sex. A further example describes a community advice centre providing separate-sex toilets plus extending an accessible toilet with baby-changing facilities to also serve as a gender-neutral option.

Notably, the Code also states that the provider should continue to monitor whether there is any negative impact on both trans and disabled people and take “appropriate action” if there is – although no guidance is offered on what that appropriate action should involve. This is an unhelpful lack of guidance to the many service providers whose facilities will be limited to single-sex toilets plus an accessible option, who may conclude that this makes their facilities inadequate for both disabled customers and trans customers.

The Code’s examples are somewhat limited. A shopping centre and a small advice centre are helpful starting points, but service providers operating in other contexts – leisure centres with complex facilities, healthcare settings, schools, or large public buildings – may find little specific guidance to work with. For instance, a service provider which only has accessible toilets within single sex toilets may struggle to find a way in which it can provide facilities for trans people to use without the risk of discrimination or harassment claims.

Changing rooms and spaces involving undress

Where people are likely to be in a state of undress, the Code indicates that the benefits of single-sex provision are more likely to outweigh other considerations. In practical terms, this suggests that changing rooms and fitting rooms raise weightier justifications for single-sex provision than toilets do, particularly where the facilities are communal rather than individual lockable cubicles.

That said, the Code gives an example of a gym with gender-neutral changing facilities comprising private cubicles with floor-to-ceiling lockable doors, where the service provider determines that providing separate-sex changing rooms is impractical because of space constraints and disproportionate cost, and that arrangement is acceptable. This suggests that incorporating sufficient privacy can make gender-neutral changing rooms acceptable. It would also seem to make little legal sense if a toilet with a floor to ceiling door could be provided on a mixed-sex basis, but a changing room could not.

The distinction between toilets and changing rooms is intuitive, but the Code does not draw the line with great precision. For instance, what about fitting rooms in retail stores, which typically have individual cubicles but may not have floor-to-ceiling walls? Or swimming pool changing areas, which may be a mix of communal and cubicle-based? The Code's reliance on broad principles of proportionality is understandable – the variety of real-world settings makes bright-line rules difficult – but this leaves service providers to navigate a fact-sensitive balancing exercise with relatively few concrete signposts.

Signage and enforcement

A recurring practical question for service providers is whether (and how) they need to “police” access to single-sex facilities. The Code explicitly states that, in relation to facilities like toilets which are “incidental” to the primary service, "it is unlikely to be either practical or appropriate to approach any particular individual to make enquiries about their sex."

The primary means of ensuring lawful single-sex provision is to clearly communicate to potential service users that the service is available to those of the same sex only. Examples are given of accomplishing this through signage, promotional materials, online and hard copy information, and/or verbal information provided during enrolment or admission. Which of these is or are most appropriate will depend on the circumstances of the service and the degree of sensitivity involved.

Only where there is "clear evidence" of an issue does the Code take the position that it may become legitimate to make enquiries. It is emphasised that this should be done sensitively, privately, and proportionately. The Code acknowledges that asking about a person's sex engages Article 8 of the European Convention on Human Rights (the right to private life) and that some people, including trans and gender non-conforming people, may find it distressing to be asked. What a sensitive request would look like in practice is unclear as the Code offers no examples, although it does state that these conversations should not be made “in the presence of other service users or staff”.

For facilities that are “incidental” to the primary service, such as toilets, the Code suggests that clear signage designating the space as single-sex (for instance, M or F signs) would ordinarily be sufficient. Service providers appear not to be expected to verify the sex of every person who enters, which would of course be hugely impractical for many (for instance, shopping centres with high foot-traffic). The Code also says that it is “unlikely to be either practical or appropriate” to approach any particular individual to make enquiries about their sex in relation to such incidental facilities.

The Code notes that there is no type of official record or document in the UK which provides proof of sex, which makes relying on documentation unlikely to be effective. It states that “it is unlikely to be proportionate or practical to ask for further evidence of a person's sex” once an individual has stated that they are entitled to use the single-sex space they are accessing. In circumstances where there is “genuine concern about the accuracy of the response to a request for an individual to confirm their sex”, service providers must consider proportionality and weigh up the “relevant factors” to decide whether exclusion is appropriate. Such factors include the nature of the service, the potential risks and harms to both the individual and other service users, and the strength of the basis for the concerns regarding the accuracy of the answer.

Asking whether someone has a Gender Recognition Certificate (“GRC”) is irrelevant, as this does not have an impact on someone’s sex for the purposes of the Equality Act. Onward disclosure of whether someone has a GRC may constitute a criminal act in some circumstances, so it is to be treated extremely cautiously.

What about organisations who want to provide trans-inclusive single-sex services?

The High Court judgment earlier this year suggested that it may be possible to offer trans-inclusive single-sex facilities without those facilities becoming fully gender-neutral. For example, if trans-inclusive toilets for men and women were provided alongside toilets limited to biological sex, then a cis man could not bring a claim on the basis that he could not access the women’s toilets.

The Code takes a markedly different approach. It states that operating such a trans-inclusive service is "very likely to amount to unlawful sex discrimination against the people of the opposite sex who are not allowed to use it”, and could also constitute sex discrimination or lead to harassment against women who use the service. This would mean that the cis man in the example above would, in theory, have to be permitted to access the “single-sex” trans-inclusive women’s toilet.

It is unclear why the EHRC does not share the High Court’s reasoning. The EHRC's Equality Impact Assessment acknowledges that this approach, which effectively sets out that any trans-inclusive provision is unlawful regardless of circumstances unless fully gender-neutral, may impact negatively on trans people. Nevertheless, it concludes it is necessary for the Code to reflect the legal position as the EHRC understands it. While the High Court’s decision on this point was a comment rather than a binding part of the reasoning for the decision (and the claimants are seeking permission to appeal the decision), it is worth noting that future caselaw from the courts may be binding even if it conflicts with the Code.

Nor does the Code engage with the positive action provisions in the Act, which some legal commentators have argued could provide a lawful basis for trans-inclusive provision in certain circumstances. The EHRC's own Equality Impact Assessment reveals that this was a deliberate choice: it considered including guidance on positive action but concluded it could not do so authoritatively given the lack of settled case law. The result is that service providers are told what they cannot do, but given limited guidance on the range of things they potentially could do. What is clear is that operating in a trans-inclusive manner will now involve greater legal risk.

Associations

The Code also addresses how the Equality Act applies to associations – bodies with at least 25 members whose admission to membership is regulated by rules and involves a selection process. This includes sports clubs, political parties, private clubs, and organisations like the Scouts.

The Code is clear that associations are permitted to restrict their membership to people who share one or more protected characteristics – for example, a Muslim women's walking club (where the members all share two characteristics), or an LGBT+ support group (where membership is based on being gay/bi and/or trans). The EHRC notes in its Equality Impact Assessment that this is likely to foster good relations, as individuals with different protected characteristics will more easily be able to associate. Importantly, this means that it appears associations can choose to be trans-inclusive if it involves combining groups with different protected characteristics. For example, an association could admit both cis women and trans women as members without facing a claim from cis men who are excluded.

Key takeaways for service providers

The updated Code represents a significant piece of the post-For Women Scotland jigsaw. Service providers should particularly note the following:

• The Code confirms that single-sex services must operate on the basis of biological sex. Admitting trans people of the opposite biological sex will mean the service is no longer "single-sex" under the Act and the Code considers this will very likely constitute unlawful sex discrimination.
• A proportionate approach may involve a mix of single-sex and mixed-sex services. For facilities like toilets, providing individual lockable rooms alongside single-sex provision is likely to be a proportionate way of meeting everyone's needs. Service providers should carry out an impact assessment to gauge demand and monitor the adequacy of their provision on an ongoing basis, including the impact on both trans and disabled users.
• Context matters. The stronger the justification for single-sex provision – such as where users are undressed in front of others, vulnerable, or unable to leave – the more likely it is that excluding the other sex will be proportionate.
• Clear signage will generally be sufficient. Service providers are not expected to police access to facilities such as toilets, and approaching individuals to ask about their sex in those contexts is unlikely to be practical or appropriate.
• In contrast to the High Court’s position, the Code neither endorses nor mentions the possibility of offering "trans-inclusive" single-sex services as a middle ground. Operating such a service should now be seen as carrying greater risk. The Code indicates that it is likely to be permissible to allow individuals to use facilities not matching their biological sex if doing so adds “necessary flexibility without undermining the aim of the service”, but intentionally avoids giving an example of how and whether this may apply to “trans-inclusive” provision due to the unsettled status of the law in this regard (per the Equality Impact Assessment).

A word on what the Code does not cover

It bears repeating that this Code applies to service providers, those exercising public functions, and associations only. It does not apply to employers. This means that employers should not assume that the approach set out in this Code will be replicated in the employment context.

That said, employers should be aware that operating a trans-inclusive policy on single-sex facilities (such as toilets and changing rooms) continues to carry higher legal risk under existing employment case law, as well as potentially breaching the Workplace (Health, Safety and Welfare) Regulations 1992. Employers must be careful to make suitable alternative provision for trans employees, for example by providing additional gender-neutral facilities. Failure to do so could give rise to gender reassignment discrimination claims.

The manner in which any policy change is communicated is also critical: a change communicated or enforced in a way that is hostile, degrading or intimidating towards trans people would itself carry a high risk of gender reassignment discrimination or harassment claims.

More broadly, while the Code provides a useful framework, it leaves a number of practical questions unanswered. The absence of guidance on the positive action route is a significant gap. The examples, though helpful, are drawn from a narrow range of scenarios which do not have much general applicability. There is a lack of clarity on what service providers should do when they are unable to make changes to their provision, for example due to landlord permissions being denied.

This area remains legally complex, and the EHRC itself acknowledges areas of ongoing legal uncertainty. Service providers should consider taking legal advice on their particular circumstances and, where relevant, carrying out their own equality impact assessments to demonstrate that they have considered the needs of all their service users.