Sex Discrimination and Gender Reassignment Series: Publication of the updated EHRC Code

In our previous SD&GR Series Insight  we provided a brief update on the delay to the government’s publication of the long-awaited updated Equality and Human Rights Commission’s ‘Services, public functions and associations’ Code of Practice (the Code). 

The updated Code was finally laid before parliament and published on 21 May 2026, over nine months since the original version was sent to the Minister for Women and Equalities for her approval in September 2025. For this series, Suzanne Nulty explores the headline developments from a gender reassignment perspective.

Process – it’s still not law yet!

The updated Code has been approved by the government’s Minister for Women and Equalities, but parliament has 40 days from the date it was laid (21 May 2026) to raise any objections. Even if none are forthcoming, the Minister will then need to enact commencement regulations which will specify when the updated Code will come into force. If objections are raised…. we will update you!

Context – What the updated Code covers

The updated Code is a mammoth 342-page document, which is perhaps not surprising given that it covers all types of discrimination (direct, indirect, harassment and victimisation, and failures to make reasonable adjustments) for all nine protected characteristics under the Equality Act 2010. 

Remember, though, it is not aimed at employers and workplaces (nor education, transport and premises). The Equality Act 2010 Employment Code of Practice (the Employment Code) remains out of date vis a vis FWS and more generally – it was last updated in 2015 - but it is in force. The EHRC says it will update it ‘in due course’.  In the meantime, it should be used with caution; and we consider the updated Code a useful barometer on the likely approach to be adopted by the EHRC when the Employment Code is finally updated. 
Also see the note below addressing when employees and service users use the same toilet / washing facilities*.

The updated Code relates to the provision of services, public functions and associations: 

Services: eg NHS and social services, local authorities, government departments / agencies, professional service providers such as solicitors, hospitality services such as hotels and pubs, transport services such as bus, rail or taxi companies, sports and leisure providers such as gyms, sports stadia and theatres / cinemas; and personal services such as hairdressers, beauty salons etc.

Public functions: law and other enforcement by, for example, police or immigration / border forces, trading standards, environmental health; planning, licencing and other regulatory and investigatory functions; functions relating to benefits and state-provided / funded services. 

Associations: non-trade organisations whose memberships are regulated by their own rules and membership / selection criteria. Examples include sports / book clubs, the Women’s Institute, Scouts, Girl Guiding, religious associations. 

Key changes concerning gender reassignment in the updated Code

Some of the key features of the updated Code we have identified are:

• The Code explains that it refers to individuals who have the protected characteristic of gender reassignment as ‘trans people’ because ‘transexual’, as used in the Equality Act, is considered by some to be outdated (para 2.38).
• As per the Supreme Court decision in FWS, where single sex spaces or services are lawfully provided, eligibility for access is decided by biological sex (para 2.88). This includes sports, games or other competitions where advantage can be gained due to strength, stamina or physique (gender-affected activity).
• Allowing trans people to access a service according to their trans (or non-biological) gender will mean that the service, space or association is not single sex (para 13.130).
• When assessing whether it is appropriate (and non-discriminatory under the Equality Act) to provide a single sex service, a provider must consider whether doing so is a proportionate means of achieving a legitimate aim (13.113).
  This involves balancing the needs of those who are able to access the service including those with other protected characteristics, for example religious beliefs which require separation of the sexes - against those who are excluded, including trans people who will not be eligible. It will also involve considering whether there is a less impactful, more proportionate, alternative to excluding trans people outright (13.113 – 13.153).
• It is open to associations and services to specify that they cater for people who share one, more than one, or a combination of several protected characteristics; an example given is a Muslim women’s running club (12.75 – 12.79).
  Comment: this will potentially enable providers to accommodate both women and trans women in an association or service, but reliance on this will need to be considered carefully to ensure that it does not create discrimination against those of the other specified protected characteristic (or any others). Further, irrespective of equality law any such association or service will need to be content that it continues to meet any charitable objects and/or satisfy any other corporate obligations (or can legitimately change them).
• One aspect already causing controversy is the updated Code’s references to service providers asking about individuals’ sex to determine eligibility to access legitimate single sex spaces, services etc. See ‘Latest Battlelines’ section below. The updated Code acknowledges that even if such questions are asked as privately and sensitively as possible (as directed by the updated Code), trans people may be placed at a particular disadvantage but, it states, any such potential discrimination is likely to be justifiable. (13.160 – 13.182)
• In terms of the perennial question of toilet and changing facilities, the Code acknowledges that provision of both single sex or mixed / non-designated facilities will be proportionate ‘in many cases’; but it will depend on the needs and protected characteristics profile of the service users and other factors such as the physical constraints of relevant buildings or disproportionate financial costs to make particular provisions (for example, 13.122 – 13.127).
  *When service providers do not provide separate facilities for their service users and their staff, the facilities will need to comply with the more stringent Workplace (Health, Safety and Wellbeing) Regulations 1992 which require employers to provide for staff either single sex facilities or gender-neutral facilities which are in a separate / individual lockable room.

Balancing women’s and trans rights?

The previous version of the Code, which remains in force until the updated Code is commenced by regulations, is 238 pages long. Whilst the Explanatory Memorandum published alongside the updated Code explains that EHRC’s review of the Code was already underway before the FWS decision, it also recognises that changes made specifically consequent upon that decision to the transgender (and related sex discrimination) aspects of the Code are ‘the most substantial’. Furthermore, ‘the implications primarily relate to the provision of sex-based services, when it is lawful to limit access to services and associations based on sex and gender reassignment, implications for competitive sport and asking about someone’s sex’.

By way of illustration, it also notes that the first, general, consultation received 500 responses whereas the subsequent consultation, issued following the FWS decision, received around 50,000.

In the updated Code’s Impact Assessment, it is recognised that ‘changes to facilities’ will be ‘the greatest areas of cost, subject to local policy decisions and the flexibility of the current estate [ie facilities]’. Other anticipated costs will be around ‘communications and training and changes to data collection.’ It also concludes that whilst there has been ‘a positive overall impact’ across all protected characteristics, ‘there are negative impacts’ ‘for the gender reassignment characteristic’

It may have been this latter part of the EHRC’s impact assessment, taken alongside the political sensitivities in this area, which led the government to take the unusual step of commissioning and publishing an ‘Annex - Additional Assessment’. In this document, the government addresses the tension highlighted by the EHRC’s impact assessment, but also highlights the positive effects of the updated Code on women’s rights to privacy, dignity and safety; and reiterates its support for Equality Act protections and access to services for trans individuals. 

It emphasises: 

• the EHRC’s impact assessment conclusion that ‘overall… the positive impact outweighed the negative’; and
• that ‘[t]he government’s position is that single-sex services should be protected to ensure women’s privacy, dignity and safety. The government also believes in upholding the Equality Act’s protections for trans people and ensuring suitable provision for them’
• the clarity provided to service providers to decide whether their services / facilities / associations etc can legally be provided on a single sex or mixed sex basis. 

Other than this Annex, the confirmation re associations and services for multiple characteristics highlighted above and the addition of a few further examples, it appears that very few changes were made to the original EHRC draft updated Code in the period since September 2025. It therefore seems likely that wrangling between the Minister and the EHRC over the impact assessment, rather than substantive changes to the Code, has been a major cause of delay and has potentially led to this unusual approach of the government publishing an Additional Assessment to the Code.

Practical steps

Take action to review policies, signage, service and facilities provision; update risk assessments and record and communicate decisions carefully; seek legal advice early where issues, risks and solutions are not clear.

Previous insights in our Sex Discrimination and Gender Reassignment Series

Sex Discrimination and Gender Reassignment Series: Spoiler alert – EHRC updated Code expected next month (May 2026) (Principal Associate, Suzanne Nulty) 30 April 2026

Sex Discrimination and Gender Reassignment Series: Challenge to EHRC ‘Interim Update’ unsuccessful in the High Court (Principal Associate, Melanie Steed) 30 March 2026

Sex Discrimination and Gender Reassignment Series: Darlington nurses successful in high profile sex discrimination/transgender rights case (Principal Associate, Louise Singh) 29 January 2026

Sex Discrimination and Gender Reassignment Series: Case Roundup – Lockwood (Partner, Emlyn Williams and Principal Associate, Suzanne Nulty) 19 December 2025

Sex Discrimination and Gender Reassignment Series: Case Roundup – Kelly v Leonardo (Principal Associate, Melanie Steed) 19 December 2025

Sex Discrimination and Gender Reassignment Series: Case roundup – Sandie Peggie (Principal Associate, Suzanne Nulty) 19 December 2025