EHRC consults on updated Services Code following Supreme Court ruling

Background

On 20 May 2025, the Equality and Human Rights Commission (EHCR) launched a consultation on proposed changes to its Code of Practice for services, public functions and associations (the Service Code). The draft updates follow the Supreme Court's decision in For Women Scotland, which confirmed that the terms ‘man’, ‘woman’ and ‘sex’ in the Equality Act refer to biological sex.

A previous draft of the Code was consulted on in late 2024, but the latest version now aligns with the Supreme Court's findings. Notably, the definition of 'legal sex' has been revised to mean 'the sex recorded at birth'. The draft clarifies that holding a gender recognition certificate (GRC) does not change a person's legal sex for the EqA 2010 purposes.

Key additions include guidance on asking about birth sex, definition of sex at birth, and updates to terminology around sexual orientation. The EHCR has also expanded chapters on discrimination, harassment and exceptions, using practical examples that reflect issues involving trans individuals.

Key updates and consultation timeline

Several chapters of the draft Services Code have been updated:

• Chapter 2 clarifies who is protected under the EqA 2010, including the implications of biological sex on protection from sex and gender reassignment discrimination.
• Chapter 4 includes a new example of direct sex discrimination based on perception involving a trans woman, and confirms that pregnancy and maternity protections apply to trans men.
• Chapter 5 adds an example of indirect discrimination where a policy disadvantages a trans woman in the same way as others sharing her protected characteristic.
• Chapter 8 includes a new harassment scenario involving a trans woman's perceived sex.
• Chapter 12 gives an example of trans woman being refused membership of a women-only association.
• Chapter 13 revises guidance on exceptions, including:

- Justifying exclusion from competitive sport or communal accommodation based on sex or gender reassignment.

- Providing separate or single-sex services, including when and how to restrict use by trans people, and developing appropriate policies.

The consultation closes on 30 June 2025. In a BBC Woman's Hour interview on 21 May 2025, the EHCR Chair stated that the aim is to submit the finalised Code to the government by the end of July. The government will then decide whether to lay it before Parliament. No date has been given for potential updates to the EHRC's Employment Code, though the Chair noted that updating the Services Code has taken two years.

Learning points for employers

Although the current consultation relates to services and public functions, the proposed changes signal the EHRC's evolving interpretation of key protected characteristics. Employers should monitor the outcome closely, particularly given potential future updates to the Employment Code. In the meantime, HR policies, training and internal guidance may need review to ensure alignment with the developing position on biological sex, gender reassignment and how these interact in practices.

For more information or advice, please contact Eleanor Tylor in our Employment team.