The Equality and Human Rights Commission (EHRC) has updated its statutory Code of Practice on services, public functions and associations. Before working through what it says, it is worth being precise about what kind of document it is, because that determines how much weight it carries. A statutory code of practice is guidance an organisation must have regard to — it is not law in itself. What binds an organisation is the Equality Act 2010; the EHRC’s updated statutory Code of Practice explains how the regulator expects that law to be applied. Read it as authoritative guidance on the Act, not as a new set of rules that displaces it.
That distinction matters most where the guidance touches single-sex and separate-sex services. This briefing sets out what a statutory code is, the direction the updated Code sets for that kind of provision, what it does not do, and how the services regime differs from the rules that govern facilities for staff.
What a statutory code actually is
A statutory code of practice is issued by the EHRC under its statutory powers. Its legal status is specific and limited: a court or tribunal must take any relevant part of it into account where it appears relevant to a question before it, and an organisation is expected to be able to explain any departure from it. It does not create new legal obligations, and it cannot change the Equality Act. Where the Code and the Act appear to differ, the Act governs.
Organisations have long had an EHRC services Code to have regard to, and the Commission has updated that guidance. The practical consequence of “have regard to” is that it is not the same as “obey to the letter”. You are expected to know the guidance, take it seriously, and follow it unless you have a considered, defensible reason not to — with that reasoning recorded. A code raises the bar for justifying a decision that runs against it; it does not remove your responsibility to reach a lawful decision on the facts in front of you.
What direction the updated Code sets for single-sex services
Within the services regime, the updated Code reflects the reasoning of the Supreme Court in For Women Scotland Ltd v The Scottish Ministers ([2025] UKSC 16), which held that “sex” in the Equality Act means biological sex. The direction the guidance sets for providers can be summarised in four points:
- Mixed or shared provision is the starting point. Offering a service to everyone, without separating by sex, is the default position from which any restriction is a departure that needs to be justified.
- A single-sex or separate-sex service is a justified exception, not an entitlement. The Equality Act permits such provision in defined circumstances; it does not require it, and it does not treat it as the norm.
- The provider carries the justification. It is for the organisation restricting access to show that doing so is a proportionate means of achieving a legitimate aim — not for the person affected to show that they should be admitted.
- Proportionality is assessed case by case. The guidance points away from blanket rules and towards individualised, evidenced decisions that weigh the needs of everyone affected, including trans people, on the specific facts.
Read as direction rather than as a binding rule, the guidance is consistent on one further point that matters for governance: it is very unlikely to be proportionate to leave a trans person with no facilities they can use at all. The safer reading of the Code is that restriction narrows options; it does not license leaving someone with none.
What the updated Code does not do
Much of the commentary around the updated Code overstates its reach. Three things it does not do are worth stating plainly.
It does not change the Equality Act. The protected characteristics, the single-sex exceptions, and the public sector equality duty all remain exactly as Parliament enacted them. The Code interprets and explains that framework; it does not rewrite it.
It does not mandate the exclusion of trans people. The Supreme Court clarified what “sex” means in the Act; it did not require any organisation to exclude anyone. The single-sex exception is permissive, not mandatory — a power a provider may use where a restriction is justified, not a duty to exclude. An organisation that reads the Code as an instruction to remove trans people from services has misread both the judgment and the guidance.
It does not diminish gender reassignment protection. Gender reassignment remains a protected characteristic in its own right. Discrimination, harassment and victimisation on that ground remain unlawful, and the duty to consider trans people’s needs sits alongside — not beneath — the sex-based provisions. There is no hierarchy of protected characteristics in the Act, and the Code does not introduce one.
Services are not the same as staff facilities
One distinction is easy to miss and important to get right: this is a Code about services, public functions and associations. It governs how an organisation provides services to the public, not how it provides facilities to its own workforce.
Single-sex facilities for staff — toilets, changing rooms and showers in a workplace — sit under the Equality Act’s employment provisions and under separate workplace and health-and-safety regulations, including the Workplace (Health, Safety and Welfare) Regulations 1992, not under this services Code. The underlying Equality Act principles are shared, but the specific regime, the applicable regulations, and the relevant guidance differ. An organisation working through a facilities question should first establish which regime applies — service provision to the public, or provision to employees — because the wrong Code will point at the wrong test. Where an organisation is both an employer and a service provider, both regimes can apply to the same building, to different users.
What organisations should do now
The governance position does not depend on the fine detail of the Code’s status. It follows from the law as it stands and from how the guidance directs providers to apply it.
- Act on the law as it stands. Waiting for perfect certainty is not a defensible position. The Equality Act applies, as interpreted in For Women Scotland, and decisions taken today are judged against it.
- Treat sex and gender reassignment as two separate characteristics. An equality impact assessment should show regard to both, considered on their own terms, rather than collapsing them into a single question.
- Document proportionate decisions at the time. What makes a restriction defensible is a recorded, individualised rationale — the legitimate aim, the options considered, and why the chosen approach is proportionate — not a general appeal to the judgment or the Code.
- Start from inclusion and treat restriction as a documented last resort. The guidance points towards keeping usable provision open to everyone and justifying any narrowing of it, rather than defaulting to exclusion. Leaving a person with no facility they can use is the outcome the guidance treats as hardest to justify.
- Have regard to the Code as guidance, not law. Know what it says, follow it where it applies, and record your reasoning where you depart from it. That is precisely what “have regard to” requires.
A statutory code is a strong signal of how the regulator expects the Equality Act to be applied, and organisations should take it seriously. But it remains guidance to have regard to, not a rulebook that replaces the Act or the duty to reach a lawful, proportionate decision on the facts. Organisations that build their practice around documented, case-by-case reasoning — rather than around a single reading of what the Code demands — are best placed as the surrounding guidance and case law continue to develop.