In the summer we reported the EHRC’s commitment to deliver its updated Code of Practice for services, public functions and associations to the government by the end of July; and that the government and parliament’s approvals should mean that it would be in force by “late autumn”. Matt Smith, Principal Associate, now updates us that, whilst the leaves are brown, the plan for the Code is certainly not on track to be delivered before they fall.
On 05 September 2025 the Equality and Human Rights Commission (EHRC) sent its much-anticipated updated Code of Practice for Services, Public Functions and Associations to the Minister for Women and Equalities for approval. The EHRC updated the Code in light of the ruling in For Women Scotland Ltd v The Scottish Ministers (FWS), in which the Supreme Court ruled that the definition of sex in the Equality Act 2010 (the Act) should be interpreted as ‘biological’ sex only.
Before the revised Code (which has not yet been published) comes into force, the Minister must approve and lay it before Parliament for 40 days. Unless Parliament disapproves the Code, the government will then set a date for it to come into force and the EHRC will publish it on their website.
On 15 October, the EHRC wrote to the Minister noting that it was six weeks since it had sent the revised Code to her for approval and six months since the Supreme Court Judgment. The EHRC set out its views that some organisations are still relying on the now outdated version and therefore may be acting unlawfully, that the old version should be revoked as soon as possible and that the revised code should be approved in its current form. It also withdrew its Interim Advice on the practical implications of the UK Supreme Court judgment from its website. The Minister has since suggested that it is disappointing that the EHRC has commented publicly on this issue and that the EHRC had not sent her all the information needed to review the Code in a timely manner.
It therefore now seems unlikely that a revised code will come into force before the new year.
Comment
The delays by both the EHRC and now the Minister underline what employers and many others, including service providers and sports regulators (referred to as ‘duty-bearers’ by the EHRC), have already deduced following the Supreme Court’s decision back in April: that balancing the rights of different groups concerned is far from straightforward.
Indeed, this was underlined when a group of nearly 50 Labour backbenchers reportedly wrote to the business secretary last week on behalf of businesses apparently concerned by the financial and legal burdens they expect to face when the Code is brought in if, as is anticipated, it remains in line with the EHRC’s previous Interim Advice.
Whilst the Code will not explicitly deal with employment issues or workplace scenarios – the EHRC will update its specific (much longer!) Employment Code in due course – the Code will, nevertheless, be an extremely important indicator on how the EHRC and the government require the balancing act to be carried out in practice.
That said, employers and other duty-bearers cannot sit back and wait for the updated Code. The Supreme Court decision stated what the law is (and has always been, albeit having been misinterpreted in some cases previously) in relation to ‘sex’ in the Equality Act, and duty bearers are required to comply with that law in real time.
The EHRC has made clear its position on this in its Interim Advice and other statements since the Supreme Court’s ruling:
‘We know that many people have questions about the judgment and what it means for them. Our updated guidance will provide further clarity. While this work is ongoing….. Employers and other duty-bearers must follow the law and should take appropriate specialist legal advice where necessary.’.
The EHRC itself has not halted its work during the hiatus. At the end of August, it commenced enforcement proceedings against 19 organisations said to be in breach of the law following the Supreme Court ruling. It did so by writing (the first stage of the enforcement action process) to ask offenders to review outdated policies. The EHRC described this as ‘proportionate regulatory action affecting a small number of organisations across different sectors as part of [its] statutory duty to promote compliance with equality law’. It is understood that over 400 ‘concerning’ workplace policies were referred to the EHRC for consideration and employers should be alert to the prospect of their staff reporting them if outdated policies remain in place.
Also, whilst the government’s scrutiny of the Code continues, the judiciary is also occupied by the competing rights of those affected by the issues in the FWS decision, with last week (w/c 20 October 2025) being particularly busy.
For instance, the case of Marie Kelly v Leonardo UK Ltd (the ‘secret toilet’ case) returned to the employment tribunal, as did ‘the Darlington nurses’ case against County Durham and Darlington NHS Foundation Trust. The issues in the Darlington case are similar to those in the Sandie Peggie v Fife, which focusses on single sex changing facilities being used by a trans woman. Whilst the hearing(s) in the Sandie Peggie case were concluded several weeks ago the decision is not expected until November 2025 at the earliest.
We will, of course, keep our clients abreast of key developments in the various aspects of this critical area.
Previous insights in our For Women Scotland Series
For Women Scotland Series: Update on EHRC developments 26 June 2025 (Principal Associate, Suzanne Nulty)
Supreme Court Decision: For Women Scotland v Scottish Ministers 6 June 2025 (Kerry Waters, Legal Director)
What is the definition of a woman? 23 April 2025 (Partner, Sejal Raja)
