The Equality and Human Rights Commission’s 2026 Code of Practice for services, public functions and associations came into force on 5 August 2026. The 2011 Code was revoked the same day. The Code applies the Supreme Court’s decision in For Women Scotland that “sex” in the Equality Act 2010 means biological sex, and it sets out how the regulator expects service providers to act on that.
One point of scope before anything else. The Equality Act applies in England, Wales and Scotland, and the provisions this Code covers do not apply in Northern Ireland (paragraph 3.19), which has its own equality framework and its own commission. This note is written for organisations in Great Britain.
Since then a good deal has been said, in Parliament and outside it, about what the Code requires. Most of it restates a small number of fixed points. This note sets those out, with the paragraph of the Code each rests on, and then turns to the part that no statement from anyone else can settle for you: the decision your organisation has to make, and be able to defend, about its own services.
If you want the background first, the Code explained covers what a statutory code is and how much weight it carries. This note assumes that and moves to practice. Every bare paragraph number below is a paragraph of the 2026 Services Code; anything else cited — the Act, a Schedule, the Employment Code — is named where it appears.
First, which regime you are in
The 2026 Code covers exactly what its title says: services, public functions and associations. That is Part 3 and Part 7 of the Equality Act. It governs what you provide to customers, clients, patients, visitors, members and the public. It does not govern the workplace, and it does not govern education: a school’s or college’s decisions about its own pupils and students sit under Part 6 of the Act, which the Code says it does not deal with (paragraphs 3.25 and 11.61). Where activities fall within Part 6, Part 3 does not apply (paragraph 3.27); an educational body’s other activities, such as services to people who are not its pupils, may come within this Code instead (paragraph 11.60). What you provide to your own staff sits under Part 5 of the Act, the employment provisions, with the EHRC Employment Code as its statutory guidance, and, separately, under workplace health-and-safety law, including the Workplace (Health, Safety and Welfare) Regulations 1992, which require an employer to provide suitable and sufficient sanitary and washing facilities for its workforce. The underlying principles of the Act are shared. The regime, the test and the guidance are not.
That matters because the wrong Code points at the wrong test. A staff-only changing room is not a “service” and the analysis in this note does not apply to it. Everything under the next two headings is about provision to the people you serve.
Where it becomes genuinely complicated is the building most organisations actually have: the one where staff use the same toilets, changing rooms or showers as customers or service users. That facility is two things at once. To the customer it is a service, governed by this Code and the proportionality test set out below. To the employee it is a workplace facility, governed by Part 5 and the 1992 Regulations, and the employer’s duties to its own trans staff run through the employment provisions, not through Schedule 3. One decision about one room has to satisfy both regimes for both groups of people, and a record that only reasons through one of them is half a record. If that is your situation, the toilets and signage playbook works through the two regimes side by side, and it is the place to start before this note.
What is settled
Separate and single-sex provision is lawful. The Act has always permitted a service to be provided to one sex only, or separately to each sex, where that is a proportionate means of achieving a legitimate aim and one of the listed conditions is met (Schedule 3, paragraphs 26 and 27; Code, paragraph 13.99). The Code gives one example of a legitimate aim: ensuring the safety of women, or the privacy and dignity of women and / or men — an aim it says such provision could serve (paragraph 13.114). Nothing in the Code makes such provision mandatory, and nothing in it makes such provision unlawful.
Sex means biological sex for the purposes of the Act. The Code incorporates the Supreme Court’s ruling directly (paragraph 2.88). A Gender Recognition Certificate does not change a person’s sex for the Act’s purposes, and the Code directs providers to its guidance on when and how it may be appropriate to request information or evidence about a person’s sex at birth (paragraph 2.89). A service that admits trans people to a service intended for the opposite sex can no longer rely on the single-sex and separate-sex exceptions, and is not a separate-sex or single-sex service under the Act (paragraph 13.130). The Code adds that such a service is also very likely to amount to unlawful discrimination against others (paragraph 13.144). Providers who had relied on the 2011 Code’s approach need to know that this has changed.
A certificate still means what it says everywhere else. The Supreme Court’s ruling is about the meaning of “sex” in the Equality Act, and the Code is careful to say so: it relates only to the Act and does not deal with the effect of the judgment on section 9 of the Gender Recognition Act 2004 for any other legislation (paragraph 2.51). Under section 9 a person with a full certificate is, for all purposes, of their acquired gender. That general rule is subject to exceptions: the 2004 Act itself carries some, in sections 12 to 20, on matters such as parenthood, succession, peerages, sport and certain gender-specific offences, and section 9(3) allows any other enactment to provide otherwise. The Equality Act’s definition of sex, as the Supreme Court read it, is such a provision. For the Act’s sex-based provisions, a trans woman with a certificate is treated according to her sex at birth (paragraph 2.50). Outside those specific exceptions, the general rule stands: in law she is a woman, on her birth certificate, in her marriage, in her legal identity. The Equality Act carve-out is real, narrow and specific, and organisations should be precise about it rather than treating it as a general statement about who a person is. The certificate is also protected information: where a provider learns that someone holds or has applied for one, onward disclosure of that fact, or of their sex, without consent may be a criminal offence under section 22 of the 2004 Act in some circumstances, which is one reason the Code says that, unless it is relevant for operational reasons, whether someone has a certificate is unlikely to be relevant information for the purposes of asking about either sex or gender reassignment (paragraph 13.181).
Dignity does not depend on the certificate. The distinction is real: self-identification is not a legal status. A trans person without a certificate is not, in law, of their acquired gender for any purpose, and their legal sex remains their sex at birth. Only a Gender Recognition Certificate confers legal recognition of the acquired gender, and even then not for the purposes of the Act. What every trans person holds, certificate or not, is the Act’s protection. The Act’s prohibitions on harassment and on discrimination because of gender reassignment apply to them in full (paragraphs 2.52 and 2.53). The Code also recognises that some people, including some trans or gender non-conforming people, may wish to keep information about their sex private as far as possible and may find it distressing to be asked about it, and it says any necessary request should be made sensitively and discreetly (paragraphs 13.161 and 13.165). The legal recognition a certificate confers is a further reason to get this right for the people who hold one. It is not the reason it must be got right for everyone.
Trans people remain protected. Gender reassignment is a protected characteristic and a trans person is protected from discrimination because of it whether or not they hold a certificate (paragraph 2.52). They are also protected from sex discrimination and harassment, including where the treatment relates to their acquired gender, by perception or association (paragraph 2.53). The Act’s prohibitions on discrimination, harassment and victimisation in services apply to trans people exactly as they apply to everyone else.
Nobody should be left without a service they can use. Where a provider restricts a service by sex, it should consider whether there is a suitable alternative for a trans person to use. For services everybody needs, the Code’s own example is toilets, it is “very unlikely to be proportionate” to leave a trans person with no service they are allowed to use (paragraph 13.148). That is a strong presumption for essential services, not a rule that settles every service in advance. Where a provider does not act proportionately, the Code says this is very likely to amount to direct or indirect discrimination because of gender reassignment (paragraph 13.149). In many cases, the Code says, the proportionate answer will be a mix: separate or single-sex provision alongside mixed-sex provision, sized to the needs and numbers of the people who use the service (paragraph 13.122).
Asking about sex is a serious step, not a routine one. Information about a person’s sex is personal data, and the Code says it may also be protected under Article 8 of the European Convention on Human Rights (paragraph 13.161). A provider must be able to objectively justify asking, and the Code says a request should only be made where it is a proportionate means of achieving a legitimate aim; one that is not could also amount to unlawful indirect gender reassignment discrimination (paragraph 13.162). In many cases the primary means of keeping a single-sex service single-sex is clear communication, through signage, promotional material and induction, rather than questioning (paragraph 13.167); where there is clear evidence of an access issue, the Code says it may be legitimate to ask individuals to confirm that they are of the eligible sex, by proportionate means (paragraphs 13.168 to 13.180). For facilities incidental to the primary service, toilets being the Code’s example, the Code says it is unlikely to be either practical or appropriate to approach any particular individual to make enquiries about their sex (paragraph 13.170). Where it is necessary to ask, the measures involved must be no more than necessary to accomplish the aim of establishing eligibility (paragraph 13.171). Such measures may be proportionate where they respond to clear evidence of the opposite sex accessing the service (paragraph 13.172). Where an individual is asked to confirm their sex, that paragraph says this “should be done as sensitively as possible, and must respect their privacy”. No document in the UK reliably evidences sex, so it is unlikely to be proportionate or practical to demand one (paragraph 13.179). Unless it is relevant for operational reasons, whether someone holds a certificate is unlikely to be relevant information for the purposes of asking about either sex or gender reassignment (paragraph 13.181).
Those points are the settled ground. Everything above them is yours.
What is yours to decide
The Code does not tell any organisation what its provision should be. It tells you what you must be able to demonstrate about whatever you decide.
Whether a restriction is proportionate. A provider restricting a service by sex under the separate and single-sex exceptions must be able to demonstrate that doing so is a proportionate means of achieving a legitimate aim (paragraph 13.113). In weighing that, the Code says the provider should consider the full range of potential service users, and whether there is a fair balance between the benefits of offering the service on a separate or single-sex basis, the needs of those accessing it, and the impact on those excluded from accessing it (paragraph 13.115). That is a judgement about your service, your users, your premises and your alternatives. It cannot be copied from another organisation and it cannot be made once for every situation. One route sits outside this test: a charity whose governing instrument limits benefits to one sex may rely on section 193 of the Act, where the restriction is either a proportionate means of achieving a legitimate aim or is intended to prevent or compensate for a disadvantage linked to sex (paragraph 13.46). That is a separate exception with its own conditions, not a shortcut through this one.
What you provide instead. The floor at paragraph 13.148 is not satisfied by a sign. It is satisfied by a facility a trans person can actually use, and by a mix of provision that reflects who uses the service. Deciding what that looks like on your premises is a design decision, and it is where most of the practical work sits.
Whether to modify access to a service for a person’s own sex. Where it is justified to provide a separate or single-sex service, the Code says it will not be unlawful discrimination because of gender reassignment to prevent, limit or modify a trans person’s access to the service for their own sex, as long as doing so is a proportionate means of achieving a legitimate aim (paragraph 13.145). A legitimate aim for that might be to prevent discomfort or distress for other service users; the Code says that will depend on the circumstances as a whole, including the nature of the service and the extent to which the trans person presents as the opposite sex, and that for this reason a provider should consider doing this on a case-by-case basis rather than as a general rule (paragraphs 13.146 and 13.147). It is an exception to an exception, it turns on the specific circumstances, and paragraph 13.148 applies to it in full. It is a decision to be reasoned and recorded, not a policy to be adopted.
How your policy handles the individual case. The Code says a policy on whether and how separate or single-sex services are provided will usually be helpful and often necessary (paragraph 13.134), and it recognises that individual circumstances may, exceptionally, call for a different approach (paragraph 13.135). Your policy has to hold both of those at once.
What happens when a concern is raised. The Code addresses providers throughout. Nothing in it gives one service user standing to question another. A concern is raised with the provider, whose decision it is, and any question the provider then puts is one it must be able to objectively justify, and which the Code says could otherwise amount to unlawful indirect gender reassignment discrimination (paragraph 13.162). How that question is asked is governed by the limits set out above. The answer should be treated as special category personal data, held securely, with access restricted to those who need it, and kept no longer than is reasonably necessary (paragraph 13.175). The Code expects providers to settle their procedures in advance and to train the staff who will apply them (paragraph 13.174). If a genuine concern remains after an answer, the Code says the provider should consider what action is proportionate, and sets out the factors that may be relevant to deciding whether to exclude the individual or to let them continue to use the service (paragraphs 13.179 and 13.180). The people on your front line will handle this well or badly depending on whether anyone has thought it through before it happens.
Where staff and service users share the facility, which regime each decision answers to. If a proportionality judgement about a customer-facing toilet also changes what your own staff may use, you have made an employment decision as well as a services one, and it has to be reasoned under Part 5 and the 1992 Regulations too. The two answers may coincide. They do not coincide automatically, and the record needs to show that both were asked.
Every one of those is a decision that, if challenged, you will be asked to explain. The Code is clear about who carries that burden: if challenged, it is for the provider to show that the restriction was a proportionate means of achieving a legitimate aim (paragraph 5.47). The question is not whether you got it right in the abstract. It is whether you can show how you decided.
The shape of a defensible decision
A defensible decision has the same shape whichever way it comes out. It names the service. It names the aim. It considers everyone the decision affects, including the trans people it may exclude, and says what they will use instead. It weighs the alternatives and says why the one chosen is the least restrictive that achieves the aim. It records who decided, when, and on what evidence. And it is reviewed when the facts change.
That is not a legal test invented for this issue. It is proportionality, and it is how a court or tribunal will look at what you did. A record is not the same as being right: a fully documented decision can still be disproportionate, and the Code is clear that what a provider must produce if challenged is evidence that the measure is justified, not paperwork (paragraph 5.47). The Code also does not require the justification to have been written down at the time. But an organisation that reasoned it through and can show how is in a very different position from one relying on the hope that nobody ever asks.
Where the toolkit helps you
This is the work the Trans Inclusion Toolkit was built for. It does not tell you what to decide. It makes sure that when you decide, the reasoning exists, is complete, and can be shown.
- Proportionality Check takes a proposed restriction through legitimate aim, necessity, less intrusive alternatives and fair balance, and produces a decision record in the Code’s own terms.
- Policy Foundations checks whether your current policy says what paragraph 13.134 now expects, and where it is silent.
- Facilities Check walks the physical estate against the floor at paragraph 13.148: what exists, who can use it, and where somebody would be left with nothing. Where a facility is shared with staff, assess it under both regimes, not one.
- Challenge Response and Flashpoint prepare your staff for the moment a concern is raised, so it is handled once, sensitively and with privacy protected, by someone who knew what to say before it happened.
- EqIA / DPIA captures the impact on everyone affected, which is the evidence the proportionality judgement rests on and the record a challenge will ask for.
- Ask Quinn answers a specific question about your service with the relevant paragraphs of the Code in front of it.
Each tool produces something you can put in front of a board, a regulator or a tribunal. That is the point of all of them.
None of this is legal advice, and the Code itself expects organisations to take specialist advice where a decision warrants it. What the toolkit gives you is the reasoning, documented, so that when you take that advice, or when you are asked to account for a decision, you are starting from a record rather than a recollection.