On 5 August 2026, the Equality and Human Rights Commission’s (EHRC) updated statutory Code of Practice for services, public functions and associations (the Code) came into force.

The Code provides statutory guidance on the Equality Act 2010 (EqA) for service providers and may be considered by courts and tribunals when interpreting the legislation. Whilst further employment-focused guidance from the EHRC is awaited, employers will find the Code a useful guide when considering workplace policies and facilities. However, it is important to be aware that some of the exceptions which are discussed within the Code are only relevant to service providers under the services, public functions and associations section of the EqA and not employers under the work section.

What has changed?

The most significant amendments reflect developments in equality law since the previous services code was published in 2011. The key changes include:

1 Updates to reflect the Supreme Court's interpretation of sex

One of the most significant changes reflects the For Women Scotland (FWS) judgment. The updated Code specifies that for the purposes of the EqA, references to "sex", "woman" and "man" relate to biological sex. It also confirms that possession of a Gender Recognition Certificate does not alter a person's sex for EqA purposes. The guidance emphasises, however, that trans individuals continue to be protected under the protected characteristic of gender reassignment.

2 Expanded guidance on single-sex services and facilities

The Code, at chapter 13, deals with the circumstances in which separate-sex and single-sex services may be justified under the EqA. It explains that service providers can restrict access to services on the basis of biological sex where one of the statutory exceptions applies and doing so is a proportionate means of achieving a legitimate aim (such as privacy, dignity, safety or the provision of specialist support services). The Code highlights the importance of assessing individual circumstances and whether alternative arrangements may be available and assessing impact on those who will be excluded from the service (both on people of the opposite sex generally and the particular impact on trans people of the opposite sex). The code states that 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”.

The Code goes on the state that if a service provider decides to have a separate or single-sex service and allows trans people to use the service intended for the opposite sex, the service will no longer be a separate or single-sex service under the EqA.

The Code emphasises that service providers should consider whether less intrusive alternatives are available for trans individuals which balance the rights and needs of all service users without undermining the single-sex nature of the service. Examples include providing separate facilities that can be accessed by trans individuals (such as accessible toilets) or, where appropriate, offering fully enclosed lockable facilities that can be used by people of either sex.

It is important to note that the Equality Act itself does not require organisations to have single sex facilities or services. It permits them in some circumstances. In many situations, larger organisations will be able to provide a mix of single sex and gender neutral facilities and services. However, situations where this becomes more complicated include where there are additional regulatory requirements which make reference to sex segregation. For instance, the CQC’s current guidance under regulation 10(2) of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 sets out “People using services should not have to share sleeping accommodation with others of the opposite sex, and should have access to segregated bathroom and toilet facilities without passing through opposite-sex areas to reach their own facilities. Where appropriate, such as in mental health units, women should have access to women-only day spaces.” It remains to be seen whether the CQC issues further guidance in light of the Code. CQC guidance also emphasises the importance of treating all patients with dignity and respect, that privacy is respected, and that due regard is had to the relevant protected characteristics of all service users. At a recent Parliamentary Committee session considering amendments to the new Health Bill, a government minister explained that new guidance for the NHS would be published shortly after the EHRC Code comes into effect, and that

  “…NHS England is also developing guidance on staff facilities, including changing rooms, toilets and washing facilities that should be used by trusts and ICBs. The provision of physical single-sex facilities for NHS staff is for NHS organisations to individually manage in line with their legal obligations. There is already legislation covering this issue, particularly the Workplace (Health, Safety and Welfare) Regulations 1992. Organisations should already be conducting assessments of their own estates and the needs of their workforce to decide what changes they need to make to comply with all legislative requirements.”

“On mixed-sex accommodation and breaches, there is a long-standing policy of same-sex accommodation. Individuals should not have to share sleeping accommodation with patients of the opposite sex unless appropriate…”

3 Broader updates across the protected characteristics

The revised Code also includes updated guidance and examples relating to other protected characteristics and forms of discrimination under the EqA 2010, including menopause-related issues where linked to sex, disability or age discrimination and protections relating to pregnancy, maternity and breastfeeding.

What does this mean for employers?

The Code provides a useful indication of the EHRC's approach to interpreting key provisions of the EqA under the work section and indicates the direction of future employment-related guidance.

One of the key challenges for employers following the FWS judgment has been the provision of toilet and changing room facilities to members of staff. It has been common, for a number of years, to have policies in place which permitted trans employees to use the single-sex facilities of their acquired gender.

Given the clear steer from the EHRC that single-sex services are determined by biological sex and that permitting a trans person to access facilities of their acquired gender will render them no long single-sex, it is recommended that employers take further action if they have such policies in place.

Employers will be aware of the Workplace (Health, Safety and Welfare) Regulations 1992 require separate sanitary facilities to be provided to men and women and changing facilities, in certain circumstances. Employers will be mindful of their need to comply with this legal requirement but also to consider the impact restricting access to biological sex will have on their trans members of staff. We recommend the following steps:

• review equality, diversity and inclusion policies in particular, organisations should consider whether any workforce policies relating to access to single-sex facilities remain appropriate and legally robust and, if not, should suspend or withdraw them;
• engage with recognised trade unions, staff networks and other stakeholders before introducing or revising policies in this area, recognising the differing perspectives that may exist amongst the workforce and the significant impact it could have on different groups – emphasising respect during engagement will be crucial;
• undertake an estate-wide review of workplace facilities to understand what provision currently exists, including single-sex, accessible and fully enclosed lockable facilities, and identify whether changes may be required to meet the needs of different groups of staff and meet legal requirements; and
• revisit guidance provided to managers and HR teams on protected characteristics and discrimination risks.

As this area continues to develop, employers should take care to balance competing rights and interests and seek specific legal advice where difficult issues arise.

How Capsticks can help?

Our Employment team is advising employers on the implications of the updated Services Code, the For Women Scotland decision and wider developments in equality law.

Our Advisory team regularly support service providers on issues in service delivery relating to equalities, including reasonable adjustments and accessible information, matters relating to same sex facilities and accommodation, PSED matters, and in responding to complaints and challenges to policies.

If you would like advice, training or support in relation to these issues, please contact Partner Nicola Green, Partner Jonathan Lewis, Partner Alistair Kernohan or Partner Andrew Latham.