The updated EHRC Code of Practice for Services, Public Functions and Associations (the Code) came into force on 5 August 2026 and provided statutory guidance on applying the Equality Act 2010 (EqA) when delivering services and public functions. While the Code is not itself the law, and does not itself impose any legal obligations, courts and tribunals must take it into account where relevant in EqA proceedings and it can be used as evidence. Public bodies should follow the law, which ultimately takes priority over the guidance in the Code. Private providers are also recommended to take the guidance in the Code into account.
The EHRC Code’s significance is that it has been produced since the Supreme Court's decision in For Women Scotland and it offers the EHRC’s practical guidance for service providers in that context.
Healthcare organisations have been at the forefront of many of the cases which have arisen relating to trans rights and the Equality Act. In For Women Scotland, the Supreme Court settled the question of the meaning of the words “sex”, “man” and “woman” in the Act. The challenge is now the issue of ensuring compliance with the Act, including ensuring that facilities and policies are appropriate.
The implications of the guidance in the Code extend beyond operational issues. Estates managers, facilities teams, workplace leads and senior responsible officers all need to understand how their buildings, facilities and policies align with the EqA. They should pay due regard to the Code, ensuring that training, policies and practices are lawful and based on sound advice.
Start with an estate-wide audit
The first priority should be a comprehensive review of the estate. Estates teams should be auditing existing toilet and changing facilities, understanding what facilities currently exist at each site, how they are configured, who owns/controls them, e.g. how any changes are authorised, who uses them and how they are signposted. This will support the Trust to put any necessary plans in place for change, e.g. works/signage, and to ensure appropriate policies.
The audit should identify:
Where single-sex facilities e.g. toilets currently exist
Whether changing/shower/other washing facilities are provided
Whether facilities comprise single lockable rooms with sinks included (for individual use) or cubicles with a separate sink/bank of sinks
Whether there are accessible facilities that can also function as individual-use facilities
Existing signage and signposting arrangements
Locations where staff and members of the public may share facilities.
Review toilets, washing and changing facilities
One of the key practical issues arising from the updated guidance concerns toilets, washing facilities and changing rooms. Estates teams should therefore understand the current position across their estate and avoid assuming that historic arrangements remain suitable. All protected characteristics should be considered, along with potential safeguarding risks. Consider carefully whether separate lockable rooms with sinks are available and what alternatives should be provided where they are not.
Practical questions include:
Do we have sufficient single-sex provision?
Are alternative facilities available?
Are there operational pinch points?
Some settings or locations may require particularly careful consideration, e.g. because they are used by staff and members of the public. It is important to take into account the vulnerability of users, the level of public access, and the way the building is used at different times.
The purpose of identifying these considerations is to arrive at an appropriate balance as necessary and avoid applying a blanket approach. Decisions should be evidence-based and proportionate to the actual use, risks and needs of each setting.
Check signage and ensure clear communications
Estates teams should assess existing toilet and changing room signage. Consider how information is provided to current and potential users of the service. Inconsistent messaging can increase the risk of complaints, confusion and escalation.
Understand how facilities are actually used in practice
A facilities review should not simply focus on building plans, which may be inaccurate or out of date. We recommend identifying how facilities are used in practice and identifying potential risk areas.
A working group is recommended. For example, estates managers should engage with facilities management teams, HR departments safeguarding teams, complaints teams, equality leads and others. This can help identify locations where concerns or practical issues have already arisen and where further action may be needed.
Consider all protected characteristics
The teams should not focus solely on sex and gender reassignment. Assessments should consider all relevant protected characteristics. For example, sex, gender reassignment, disability, age, religion or belief, or pregnancy and maternity might be relevant, in different ways at different sites. Any estate strategy should therefore be based on a balanced assessment rather than a single-issue approach.
Record decisions carefully
The way in which decisions are reached may be just as important as the decisions themselves. This is a sensitive and potentially high-risk area and an organisation's ability to defend a discrimination challenge may depend significantly on how its evaluation and decision-making processes were carried out and recorded. A well-documented paper trail of information and evidence may prove critical if decisions are later challenged. It should include what alternatives were assessed, how competing impacts were evaluated and balanced, and why the final approach was considered proportionate. Include also the reasons for rejecting/adopting particular options; who made the decision; under what governance route; and how the approach will be monitored and revisited/reassessed.
Employment
The Code does not expressly apply to employers’ duties under the Act, which are dealt with under a separate code of practice, which was published in 2011. The EHRC Employment Code 2011 is now out of date in a number of ways, but the EHRC has not indicated when it will be updated. In the meantime, public bodies should consider their role as an employer and should not wait for a revised code of practice on employment before reviewing their approach to issues which engage the EqA following the FWS v The Scottish Ministers Supreme Court decision in April 2025. This is because the obligations of public bodies under the EqA, as interpreted by the Supreme Court, apply regardless of whether the EHRC has published its updated employment-specific guidance, and will apply whether or not the public body decides to follow the guidance set out in the 2011 Employment Code.
