EHRC draft Services Code of Practice laid before Parliament

Background

There are three EHRC Codes of Practice covering the provisions of the Equality Act 2010 (the Act):

• Code of Practice on employment
• Code of Practice on equal pay
• Code of Practice for services, public functions and associations

The EHRC describes the Codes of Practice as “the authoritative sources of guidance” on the Act and they are taken into account by courts and tribunals when interpreting the Act.

The Code of Practice for services, public functions and associations (the Services Code) applies the legal concepts in the Act to everyday situations and provides many practical examples. Part 3 of the Services Code is based on the principle that people with the “protected characteristics” set out in the Act should not be discriminated against when using any service.

On 2 October 2024, the EHRC commenced a consultation on updating the Services Code. The purpose of the consultation was to update the Services Code to reflect case law and legislative developments since its publication back in 2011.

The consultation period ended on 3 January 2025.

However, before the updated Services Code was finalised, the Supreme Court gave its decision in For Women Scotland Ltd. As mentioned above, it was held that the definition of “sex” in the Act refers to biological sex. A transgender woman with a Gender Recognition Certificate (GRC) did not come within the definition of “woman” for the purposes of the Act. The definition of “sex” in the Act is binary and a person is either a woman or a man. Trans people have the protected characteristic of gender reassignment and gender reassignment and sex are separate bases for discrimination and inequality.

Shortly after the Supreme Court decision, the EHRC published an interim update to highlight the consequences for workplaces and services open to the public.

On 19 May 2025, the EHRC commenced a second consultation on the Services Code to update specific sections to reflect the practical implications of For Women Scotland Ltd.

The consultation period ended on 30 June 2025.

The EHRC provided the draft updated Services Code to the Government on 4 September 2025 and many organisations deferred making any changes to their policies and procedures in the expectation that the Services Code would be approved by Parliament shortly afterwards. Instead, we had an unexpected delay. The Government provided feedback to the EHRC and an updated draft of the Services Code was provided to the Government on 14 April 2026 and then laid before Parliament on 21 May 2026.

For more details of the Supreme Court decision and the EHRC May 2025 consultation see our previous articles.

• Supreme Court For Women Scotland
• EHRC Consultation May 2025

So, what is in the long-awaited draft Services Code?

The draft Services Code

It is important to note that this is the draft Code of Practice for services, public functions and associations. The EHRC plans to update the Code of Practice on employment “in due course” but there is no timeline at all for this.

The matters set out in the draft Services Code include who has rights and obligations under the Act and the different types of discrimination and harassment that can occur. It also includes many practical examples.

The Act contains a number of exceptions which permits conduct that would be otherwise unlawful.

Chapter 13 Exceptions

Chapter 13 Exceptions covers the high-profile issue of Services for Particular Groups and some key points to note are below.

Chapter 13.90 refers to the exceptions in the Act which allow service providers and, in certain cases, those exercising public functions to provide services:

• Separately and/or differently for women and men.
• Exclusively for women.
• Exclusively for men.
• To people of a particular age group (in certain circumstances).

Chapter 13.92 considers Separate services for women and men. The Act does not prohibit sex discrimination where a service provider (including a person providing a service in the exercise of public functions) offers separate services for men and women in specific circumstances. It is lawful to provide separate-sex services if:

• a joint service for women and men would be less effective; and
• providing the service separately to women and men is a proportionate means of achieving a legitimate aim.

If these conditions do not apply, the provision of separate-sex services is likely to be unlawful sex discrimination.

Chapter 13.99 considers Single-sex services. The Act does not prohibit sex discrimination where a service provider (including a person providing a service in the exercise of public functions) provides a service exclusively to one sex, if doing so is a proportionate means of achieving a legitimate aim and at least one out of six conditions apply:

• Condition 1: Only people of that sex need the service.
• Condition 2: A service that is provided jointly for both sexes is not sufficiently effective without providing an additional service exclusively for one sex.
• Condition 3: A service provided for men and women jointly would not be as effective, and the demand for the services makes it not reasonably practicable to provide separate services for each sex.

Example: A support unit for women who have experienced domestic or sexual violence can be established, even if there is no men’s unit established because there is insufficient demand to make it reasonably practical to provide a separate service for men.

• Condition 4: The service is provided at a hospital or other place where users need special care, supervision or attention.

Example: A hospital chooses to provide a single-sex hospital ward for women patients to protect their safety, privacy and dignity. The hospital supports this decision by noting that the ward in question does not fit its criteria for the small number of circumstances where mixed-sex accommodation may be acceptable. 

• Condition 5: The service is for, or is likely to be used by, more than one person at the same time and a woman might reasonably object to the presence of a man, or vice versa. It is likely to be reasonable for a woman to object to the presence of a man if she will be getting undressed or in a vulnerable situation when she is using the service.

Example: Women-only communal changing rooms in a sports facility.

• Condition 6: The service is likely to involve physical contact between the service user and another person and that other person might reasonably object if the service user is of the opposite sex.

Example: A female carer only provides intimate personal care to female clients as she is uncomfortable providing this type of care to men in a domestic environment.

Chapter 13.113 to 13.133 considers Justification for separate and single-sex services.

When providing a separate or single-sex service, a service provider (including a person providing a service in the exercise of public functions) must be able to demonstrate that doing so is a proportionate means of achieving a legitimate aim (Chapter 5.52 to 5.57 considers proportionality).

An example of a legitimate aim, for providing a separate or single-sex service could be ensuring the safety of women or the privacy and dignity of women and/or men. The service provider (including a person providing a service in the exercise of public functions) must show that providing the service only to one sex or separately to both sexes is a proportionate way to achieve the aim.

When deciding what is proportionate, all potential service users should be considered and whether there is a fair balance between:

• the benefits of offering the service as a separate or single-sex service, and
• the needs of those who are accessing it, and
• the impact on those who are excluded from accessing it.

The impact on those who will be excluded from the service includes both the impact on people of the opposite sex generally and the particular impact on trans people of the opposite sex. In separate or single-sex services, a trans man will be excluded from the men-only service because his sex is female, and a trans woman will be excluded from the women-only service because her sex is male. Trans people are likely to be disadvantaged by this, by comparison to people who are not trans.

The service provider (or person providing a service in the exercise of public functions) should consider whether the disadvantage to trans people, and any other people who may be disadvantaged, outweighs the benefits of achieving the legitimate aim. They should also consider whether there is a less intrusive option than excluding trans people which would be proportionate.

Example: 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. They also note that this option may cause safety risks and distress for trans users if required to use the toilets designated for those of the same biological sex. The service provider therefore decides to also provide toilets in individual lockable rooms with handbasins, which can be used by people of either sex.

It is good practice to record the reasons why a decision has been taken to provide or not to provide a separate or single-sex service, along with any supporting evidence. (Chapter 13.129)

It will usually be helpful and often necessary for service providers (including a person providing a service in the exercise of public functions) to have a policy setting out whether, and if so how, separate or single-sex services will be provided. (Chapter 13.134).

Chapter 13.142 considers Separate or single-sex services – gender reassignment

If a service provider (including a person providing a service in the exercise of public functions) is considering providing a separate or single-sex service, they should consider the impact on trans people’s use of the service.

A legitimate aim for excluding a trans person from a separate or single-sex service for their own sex might be to prevent discomfort or distress for other service users. Service providers should consider whether other service users could reasonably object because they are worried about sharing a single or separate-sex service with someone who appears to be of the opposite sex. That will depend on all the circumstances, including the nature of the service in question and the extent to which the trans person presents as the opposite sex. For this reason, a service provider (including a person providing a service in the exercise of public functions) should only consider doing this on a case-by-case basis.

The service provider should consider whether there is a suitable alternative service for the trans person to use. In the case of services which are necessary for everybody, such as toilets, it is very unlikely to be proportionate to put a trans person in a position where there is no service that they are allowed to use.

If the service provider does not act proportionately, this is very likely to amount to direct or indirect discrimination because of gender reassignment

Chapter 13.161 to 13.180 considers Asking about sex

To comply with Article 8 of the of the European Convention on Human Rights (ECHR) a service provider must be able to objectively justify asking an individual about their sex. A request for information about sex should only be made where it is a proportionate means of achieving a legitimate aim.

One example of a legitimate aim is in relation to lawful single or separate-sex provision under the Act. Clear communication to potential service users is crucial and this can include signage, promotional materials including online and hard copies and information provided as part of any induction process.

Chapter 13.168 states that where regardless of such communications, there is clear evidence of an issue with members of the opposite sex accessing or seeking to access the single or separate-sex service or association, it may be legitimate to ask individuals to provide confirmation that they are of the eligible sex by proportionate means. Evidence of such concern might include the individual’s physique or physical appearance, behaviour or concerns raised by other service users. However, service providers, those performing public functions and associations must keep in mind that it is not always possible to be sure of a person’s sex from their appearance. Whether it is legitimate to approach any particular individual to make enquiries about their sex will be a sensitive question that will depend on all the circumstances. However, where it is necessary to ask about a service user’s sex, the measures involved must be no more than necessary to accomplish the aim of establishing eligibility. Where an individual is asked to confirm their sex, this should be done as sensitively as possible and must respect their privacy.

Comment

Despite its length and the many practical examples included in the draft Services Code, service providers and associations are still likely to find it challenging to meet the needs of different groups in what is becoming an increasingly polarised issue.

The Supreme Court made it clear in its judgment that the biological interpretation of “sex” would not disadvantage or remove important protections from trans people. They would still be protected from discrimination through the protected characteristic of gender reassignment and be protected from discrimination and harassment in their acquired gender.

Dr Mary-Ann Stephenson, EHRC chair, said: “We know there are strongly held views throughout our society about how the law should balance the rights of different people. It’s our job to issue guidance which clarifies how duty-bearers can meet their obligations under the Equality Act while respecting everyone’s rights.”

The EHRC plans to update the Code of Practice on employment “in due course” but as mentioned above there is no timeline for this. Bearing in mind the length of time it has taken to prepare a final draft of the Services Code, (which is still not in force), the Employment Code could be several years away. In the meantime, employers are likely to find some practical guidance in the draft Services Code.