Government seeks costs assessment before approving updated EHRC Services Code
The government has asked the Equality and Human Rights Commission (EHRC) to produce a costs assessment to help decide whether a full regulatory impact assessment is required before approving the draft Code of Practice on services, public functions and associations.
Background
The EHRC has updated its 2011 Code of Practice to reflect the Supreme Court's judgement in For Women Scotland Ltd v Scottish Ministers, which clarified that 'sex' in the Equality Act 2010 refers to biological sex. The EHRC submitted its draft to the government on 5 September 2025 and is awaiting approval of the updated Code.
Before the Code can take effect, the government must consider it, and once approved by them, it must be laid before Parliament for 40 days. If neither House votes to reject it during that period, the government may make an order bringing it into force.
On 5 November 2025, Baroness Smith of Malvern, Minister for Women and Equalities, responded to questions in the House of Lords about the government's delay in approving the draft updated Services Code.
The Minister explained that, in line with 2023 government guidance, the EHRC has been asked to provide a proportionate costs assessment. This will enable the government to determine whether the draft Code falls below the threshold requiring a full regulatory impact assessment before it is laid before Parliament.
The government is also considering the EHRC’s request to withdraw the existing, outdated Code pending approval of the new version. Baroness Smith confirmed that, regardless of the Code’s status, the Supreme Court’s decision in For Women Scotland Ltd v Scottish Ministers on the definition of “woman” under the Equality Act 2010 remains binding law, and organisations seeking to comply with it should obtain legal advice.
Learning points for employers
Whilst the updated Code awaits approval, the existing Code technically remains in force but should be read alongside the Supreme Court’s judgment in For Women Scotland Ltd. Organisations should keep policies and training under review to ensure compliance with the developing legal position on sex and gender under the Equality Act 2010.
For more information or advice, please contact Georgia Blesson in our Employment team.