By Jo Seery Professional Support Lawyer &
Neil Todd Partner Trade Union Law Group
The Equality and Human Rights Commission (EHRC) is updating its Code of Practice for services, public functions and associations. This follows the UK Supreme Court judgment on 16 April 2025 which interpreted the definition of “sex” under the Equality Act 2010 (EqA).
In its ruling in For Women Scotland v The Scottish Ministers, the Supreme Court held that for the purposes of the EqA, the protected characteristic of sex means biological sex. This means that:
- A ‘woman’ is a biological female
- A ‘man’ is a biological male
- A person’s legal sex is the sex that was recorded at birth and a Gender Recognition Certificate (GRC) does not change a person’s sex for the purposes of the EqA.
The Supreme Court made clear that its decision was a matter of statutory interpretation and did not remove or diminish the important protections in the EqA for trans people.
In view of the Supreme Court Judgment the EHRC launched a consultation on the updated provisions of the code of practice for services, public functions and associations on 20 May..
The following sections of the Code have been changed and it is these changes the EHRC is consulting on:
Chapter 2 which sets out the legal definition to whom rights apply as regards services, public functions and associations. Views are sought on the amended legal definitions including on sexual orientation and guidance on asking about birth sex
Chapter 4 which sets out where direct discrimination may occur, including pregnancy and maternity, and seeks views on an example of sex discrimination by perception.
Chapter 5 on indirect sex discrimination including a new example of when people experience the same disadvantage even where they do not share the same protected characteristic.
Chapter 8 which covers harassment and views are sought on the example of harassment where a person is perceived to have a particular protected characteristic.
Chapter 12 which explains what an association is and what is unlawful under the EqA and views are sought on the example included.
Chapter 13 on exceptions to when conduct would otherwise be unlawful under the EqA and includes updated sections on competitive sport, separate and single sex services and communal accommodation on which views are sought.
The consultation closes on 30 June 2025 on the changes proposed which are intended to best reflect the practical implications of the judgment in revised guidance.
Trade union reps and members working in affected sectors may wish to review the forthcoming consultation and consider how any changes to workplace policies or practices should be approached to ensure compliance with the EqA.
