EHRC Code of Practice: significant guidance on single-sex services following For Women Scotland

The long-awaited Equality and Human Rights Commission (EHRC) draft Code of Practice for services, public functions and associations (the Code) came into force as statutory guidance on 5 August 2026, following a 40-day period of parliamentary scrutiny. It replaces the previous 2011 Code and has been updated to reflect developments in legislation and case law, including the Supreme Court’s April 2025 judgment in For Women Scotland Ltd v The Scottish Ministers concerning the meaning of “sex” under the Equality Act 2010. 

The most significant aspect of the Code is its guidance on the practical implications of the UK Supreme Court's decision in For Women Scotland Ltd v The Scottish Ministers (For Women Scotland). The Supreme Court held that “sex”, “man” and “woman” in the Equality Act 2010 refer to biological sex. In particular, the Court held that obtaining a Gender Recognition Certificate (GRC) does not change a person’s legal sex for the purposes of the Equality Act. 

Reflecting that judgment, the Code states that a person’s sex remains their biological sex for the purposes of the Equality Act, whether or not they hold a GRC. It therefore provides guidance on how lawful single-sex and separate-sex services should operate and how service providers should approach the interaction between the protected characteristics of sex and gender reassignment. 

Here, Catherine Forshaw — a member of our multi-award-winning sports sector team and an expert in the law relating to transgender athlete inclusion — lays out how the Code will work in practice and what organisations should be wary of when it comes to facilities, participation and verification.

A brief history of revising the Code

Work to revise the Code began in November 2022. However, following the Supreme Court's judgment on 16 April 2025 in For Women Scotland, the EHRC amended the draft to reflect the Court's interpretation that "sex" in the Equality Act refers to biological sex. 

This reversed the EHRC's previous guidance that a Gender Recognition Certificate changed a person's legal sex for the purposes of the Equality Act.

The revised Code explains how the protected characteristics of sex, gender reassignment and sexual orientation interact under the Act. More broadly, it covers all nine protected characteristics and provides practical guidance and examples of conduct that are likely to amount to discrimination or harassment, together with steps that organisations can take to reduce legal risk.

Single-sex & separate-sex services

Ordinarily, providing services exclusively to men or women would amount to direct sex discrimination. However, the Equality Act contains narrowly drawn exceptions permitting single-sex or separate-sex services where these are a proportionate means of achieving a legitimate aim.

The Code explains the circumstances in which these exceptions may apply, including where:

• A joint service would be less effective than providing separate services for men and women.
• Only one sex requires the service.
• An additional single-sex service is needed because a mixed service isn’t sufficiently effective.
• Demand makes it impracticable to provide separate services while maintaining an effective service.
• The service is likely to be used by more than one person at the same time and users might reasonably object to the presence of a member of the opposite sex (for example, in communal changing facilities).

The Code states that where these exceptions apply, service providers must demonstrate that operating the service on a single-sex or separate-sex basis is a proportionate means of achieving a legitimate aim.

The proportionality assessment

A central theme of the Code is that organisations must undertake a careful proportionality assessment rather than applying blanket policies.

Service providers should consider:

• The legitimate objective being pursued, including issues of safety, privacy and dignity.
• The needs of all potential service users, including those with different protected characteristics.
• The impact of exclusion on both members of the opposite sex generally and transgender people in particular.
• Whether a less intrusive alternative could achieve the same legitimate aim.

The Code recognises that a holistic approach may sometimes be appropriate, for example by offering a combination of mixed-sex and single-sex facilities. It gives the example of providing separate-sex services alongside mixed-sex provision where this represents a proportionate response to the needs of different service users. It also recognises that alternative arrangements will not always be reasonably practicable. 

The particular needs of some groups should also form part of the proportionality assessment. For example, the Code recognises that Muslim service users may have a particular need for separate-sex services in order to observe the requirements of their faith.

Consequences of operating mixed-sex services

The Code warns that organisations should also consider the legal implications of choosing not to provide any single-sex or separate-sex facilities. In some circumstances, providing only mixed-sex services could amount to direct or indirect discrimination or result in unlawful harassment.

Conversely, where an organisation has established a lawful single-sex or separate-sex service but permits a transgender person to use the service intended for the opposite biological sex, the Code states that the service will no longer qualify as a single-sex or separate-sex service and that this is likely to amount to unlawful discrimination.

The Code does not, prescribe a blanket approach to every individual case and also recognises practical limits. In relation to essential facilities (such as toilets), it’s very unlikely to be proportionate to leave a transgender person without any facility that they’re permitted to use.

Sport & gender-affected activities

The Code also addresses participation in competitive sport. The Equality Act permits different arrangements for male and female competitors in "gender-affected activities" where average differences in strength, stamina or physique would otherwise disadvantage one sex.

Reflecting For Women Scotland, the Code states that any sex-based participation rules should be applied according to biological sex. As a result, transgender people shouldn’t compete in single-sex competitions for the sex with which they identify.

The Code expressly recognises that the law concerning the relevant sex-discrimination exception in Section 195(1) of the Equality Act is not settled. Organisations should therefore take care when designing other sex-based participation rules and obtain appropriate legal advice where necessary.

The Code further explains that it may be lawful to exclude some transgender people, or treat them differently from other members of their biological sex, where this is necessary for safety or fair competition. Where such restrictions are not necessary, however, excluding transgender people is likely to amount to unlawful gender reassignment discrimination. 

Organisations should also consider whether alternative arrangements could enable participation while addressing safety or fair-competition concerns, for example mixed-sex or open categories or other arrangements appropriate to the particular sport — to minimise the risk of indirect discrimination.

Verifying biological sex

The Code states that, where there is clear evidence of an issue involving people of the opposite sex accessing a lawful single-sex or separate-sex service, it may be proportionate to ask individuals to confirm their sex. The Code gives examples of factors that may be relevant, including the strength of the grounds for concern, concerns raised by other service users, the nature of the service or facility and any particular history or evidence of improper access. 

Any such checks should be proportionate and no more extensive than necessary to establish eligibility. Where checks are conducted, they should be carried out sensitively and with respect for individuals' privacy.

What does this mean for organisations?

The Code provides a clear indication of how the EHRC expects organisations to apply the Equality Act following For Women Scotland. 

Businesses, public authorities and associations that provide single-sex or separate-sex services should review their existing policies and practices now — paying particular attention to proportionality assessments, the documentation of legitimate aims and the consideration of alternative arrangements where appropriate.

Talk to our experts

We advise governing bodies, leagues, clubs and athletes on navigating complex regulatory and equality issues. 

We’re here to support your organisation by:

• Reviewing and implementing eligibility and participation frameworks.
• Drafting tailored eligibility criteria, participation policies, FAQs and other supporting documentation.
• Online training on the application of the Code.
• Advising on the application of the Equality Act following For Women Scotland.
• Undertaking proportionality assessments and risk reviews.
• Responding to complaints, regulatory enquiries and discrimination claims.

We also advise athletes on the implications of eligibility decisions, discrimination issues and regulatory disputes.

Book a chat with our specialists today by calling 0333 004 4488, emailing hello@brabners.com or completing our contact form.