On 21 May 2026, the Equality and Human Rights Commission (EHRC) published its revised draft Code of Practice for services and public functions (the revised Code).

Background

In a landmark decision handed down on 16 April 2025 in the case of For Women Scotland Ltd (FWS) v The Scottish Ministers, the Supreme Court held that the terms “man”, “woman” and “sex” in the Equality Act 2010 (the Act) refer to biological sex (see our previous insight on the judgment here).

Organisations have been awaiting the EHRC’s revised Code since the judgment, and the revised Code is now before Parliament for approval. Once the revised Code is in force, public bodies will need to take account of it in their capacity as service providers, including in relation to any sex-differentiated/single-sex services and facilities.

Although the revised Code does not apply directly to the provision of facilities in the workplace, it will still be of interest to employers in informing their potential approach to staff facilities.

Key points for employers to note

Paragraphs 13.92 onwards of the revised Code deal with services for women and men, with 13.113 to 13.152 being of particular interest. These make clear that service providers must be able to demonstrate that single-sex services are justified, balancing the needs of those accessing the services with the needs of those excluded from the service. Of particular note is paragraph 13.144 which states:

• that a service provider which allows trans people to use a service intended for the opposite sex will no longer provide a single-sex service under the Act;
• to do so is likely to amount to unlawful discrimination against others;
• a mixed-sex service can be offered alongside a single-sex service and should be open to all.

Key takeaways

The revised Code will impact directly on service design and delivery, while also informing how employers should approach the provision of workplace facilities for staff.

There are a number of points of interest in the revised Code regarding both protected characteristics more generally (for instance, as regards disability discrimination) and compliance with the Act in relation to service users. Previously, the Care Quality Commission (CQC) has said that it would review the impact of the For Women Scotland decision on its regulation, taking into account any national policy decisions from other bodies and any future statutory guidance from the EHRC. Health and care providers, as well as commissioners, will need to take account of both the Code and any revised position from regulators in light of it.

How Capsticks can help

We will publish a more in-depth insight on the draft revised Code from the perspective of both service providers and employers in due course. In the meantime, if you have questions about how the new Code may impact on service design and delivery, or require support to manage an increase in questions about their approach to such services and facilities for staff and members of the public, please do contact us.

If you would like access to advice, training or need further guidance on these issues or a specific case, please contact Partners Nicola Green, Jonathan Lewis, Alistair Kernohan or Andrew Latham.