The New EHRC’s Code of Practice for Service Providers is now in force

By Jo Seery, Professional Support Lawyer

The Equality and Human Rights Commission (EHRC) updated statutory Code of Practice for Services, Public Functions and Associations, (The EHRC Code) came into force on 5 August 2026. 

The EHRC Code applies in England, Scotland and Wales to service providers and those carrying out public functions (Part 3 Equality Act 2010 - EqA), including public authorities, private or voluntary organisations as well as associations under Part 7 of the Act. Services to the public include for example, the provision of nursery and day care and the running of residential homes or leisure centre facilities, irrespective of whether provided by a private body or local authority. Likewise public functions include those provided by private companies, for example where a private company manages a prison or a voluntary organisation is responsible for child protection.

The EHRC Code has been updated since it was first published in 2011 to reflect the changes in the law including the definition of disability, what amounts to a philosophical belief and the judgment of the Supreme Court in For Women Scotland Ltd v The Scottish Ministers (SC judgment) which held that the definitions of ‘sex’, ‘man’ and ‘woman’ in the Equality Act 2010 mean biological sex.

While the EHRC Code is not legally binding, it provides practical guidance on the interpretation of the Equality Act 2010. The courts and tribunals must take it into account where relevant when determining claims for discrimination, harassment and victimisation in the provision of services provided publicly or privately. Although the EHRC Code does not apply to employers, in the absence of an updated Employment Code (which the EHRC have said they will provide) employers are likely to apply the code in relation to the provision of services.

It is important to remember that the underlying purpose of the Equality Act 2010 is to ensure that people are treated equally regardless of their protected characteristics. Where there is a tension between the rights of those who share one protected characteristic and those who share a different protected characteristic, no single right “trumps” that of another.

One area of tension since the judgment in For Women Scotland Ltd has been in relation to the provision of single or separate sex services.

This article focusses on the EHRC guidance which interprets the Equality Act 2010 in respect of single sex services and how that applies to trans people in the workplace. We refer to service providers to cover all those to whom the EHRC Code applies.

Are single sex services lawful?

The general position is that providing services only to one sex, say prostate cancer screening for men, amounts to direct discrimination of the excluded sex, women (section 29 EqA 2010). However, the EqA 2010 allows for single sex and sex segregated services as a general exception to this rule if a joint service would be less effective and the provision is a proportionate means of achieving a legitimate aim (Schedule 3).

A single sex service will only be proportionate where it is not possible to meet the relevant aim by providing a separate service, be that an equivalent service or a different service. So, referring to the example above, if cervical cancer screening was provided for women only, the provision of the prostate cancer screening service for men only would be proportionate.

Where it is not possible to provide either a separate equivalent service or a separate but different service, the EqA 2010 provides that a single sex service will not be discriminatory where one or more of the six bullet point criteria (see Box) are met. It may still be reasonable for the service to be provided jointly (meaning both sexes) provided the effectiveness of the service is not compromised (para.27(3)).

Jointly does not mean providing a service for women which includes transwomen but excludes non-trans men. The EHRC Code confirms that where a service provider provides a service to be used by both women and transwomen that service is not a single sex service in light of the SC judgment that sex means biological sex. As such, the service provider who continues to provide a service such as toilets or changing rooms for women including transwomen (but not men) is at risk of claims for indirect sex discrimination or harassment by women, The claim for indirect discrimination would be on the basis that the failure to provide a single sex toilet amounts to a PCP which puts women at a particular disadvantage which cannot be justified as a proportionate means of achieving the legitimate aim. The EHRC Code gives guidance on legitimate aims such as ensuring the safety of women or preserving the privacy and dignity of men and/or women. Applying a test of proportionality the EHRC Code states that this requires striking a balance between the benefits of providing a separate or single sex service sex service to the women and/or men accessing them as well as the impact on those who are excluded and consider what alternative less discriminatory provision could be provided. This can be in the form of providing a self-contained single user toilet with washbasin and hand drying facilities. In practice many smaller and less profitable service providers such as cafes, hairdressers and care homes will usually have just only one such self-contained facility. In other larger organisations it may be feasible to provide both single sex and self-contained unisex toilets

Does the provision of a single sex service amount to gender reassignment discrimination?

The EHRC Code makes clear that the needs of trans people must also be considered (para13.142). Excluding trans people from a service or facility of the sex with which they identify may also amount to gender reassignment discrimination. This is on the basis that the provision of single sex services amounts to a provision, criterion or practice which puts trans people at a particular disadvantage such as risks to their safety if they are made to use the services or facilities which correspond to their biological sex. The issue then is as to whether the provision of separate facilities is justified. As stated above in respect of a claim for indirect sex discrimination, alternatives which are proportionate to reduce the disadvantage to trans people should be considered. This could be the provision of a reasonable alternative in addition to single sex provision.

A similar exception to sex discrimination applies to gender reassignment discrimination (para 28 of Schedule 3). The effect of this exception means that the provision of single sex services that are provided either separately or differently and which are proportionate to meet a legitimate aim such as the protection of safety, privacy and dignity will not amount to gender reassignment discrimination.

Summary

• A single sex or separate service must be provided on the basis of biological sex
• Clear signage and information that the single sex service is only available to those of the same biological sex should be provided
• Consideration of alternative provisions such as single sex together with self-contained unisex toilets and changing rooms will reduce the risk of indirect sex and gender reassignment discrimination claims

The stronger the justification for single sex provision for women the more likely the exclusion of the opposite sex can be justified. When considering whether to provide or withdraw a single sex service the EHRC Code considers the following factors should be taken into account:

• whether women are likely to be in a state of undress
• whether there will be limited ability for women to leave or to choose an alternative service
• whether the service is provided as a result of, or connected with, male violence against women
• whether the physical differences between men and women are relevant to the experience of the service and put women at a particular disadvantage

Where factors like these are present, the benefits of offering a separate or single-sex service will be likely to outweigh other considerations.

What does the EHRC Code mean for Unions?

Many employers will be applying the EHRC Code as this is the only statutory guidance on how to apply the judgment of For Women Scotland Ltd. We advise that Unions will do well to adopt the same approach balancing the needs of their members. In the words of the Certification Officer in another case “all trade unions and employer associations [should] ensure that they review their rules, procedures and guidance in respect of the UK Supreme Court’s ruling in, For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16, given its declaratory effect, should they have not already done so.”