On 14 April 2026, a cat’s whisker ahead of the one-year anniversary of the Supreme Court decision in For Women Scotland v The Scottish Ministers, the government issued statements in both Houses of Parliament updating their respective members and the public on the long-awaited updated EHRC Code of Practice on Services, Public Functions and Associations (the Code).
Minister for Women and Equalities, Bridget Philipson’s statement omitted to mention that the EHRC had originally sent the updated Code for her review back in September 2025, instead focussing on the fact that, ‘following engagement and further legal analysis’ a further updated draft was provided to government on 13 April 2026. She went on to say that she intends to lay the Code before parliament ‘in May …as soon as practicable after the election period’ and is prevented from saying (or doing) anything further before then whilst the pre-election ‘purdah’ or ‘period of heightened sensitivity’ is in place. For the local elections in England, the purdah started on 16 April 2026, and will continue until 7 May 2026, but Scottish and Welsh parliamentary election purdahs began in March and on 08 April respectively.
Readers of this series will know that the Code will only be laid before parliament if approved by the Minister, which is where the process stalled when the original update was sent by the EHRC to Ms Philipson last year. If / when it is approved, it will be laid for 40 days during which period any objections can be raised. Unless one of the Houses of Parliament rejects the Code via a resolution, it will then then pass to become a statutory Code.
There was no specific mention in Ms Philipson’s statement, still less an explanation, of the intervening delay by the government; it is understood from previous press releases or statements, that during the relevant period Ms Philipson requested the EHRC provide: further information; a controversial / unconventional and arguably legally unnecessary impact assessment; and, ultimately, a re-draft of parts of the updated Code. She had hinted that the change in the Chair of the EHRC in December 2025 has also been a factor, though both current and former Chairs (Dr Mary-Ann Stephenson and Baroness Falkner respectively) have taken the same public line on the matter.
During the delay, the tensions between the EHRC hierarchy and the government have been aired publicly, if ‘respectfully’, as each set out their respective opposing perspectives in many statements and press briefings at various junctures. Essentially, the Minister has said that the legal position is clear following the Supreme Court decision and duty bearers should get on and implement appropriate changes in accordance with that decision; she also criticised the EHRC for a ‘slow’ response to requests for more information, whilst asserting that it is proper for the government to take its time to ensure this important Code is ‘right’. On the other hand, current and former EHRC leaders (especially former Chair Baroness Falkner) have lamented the government’s delay and the lack of clarity which the lacuna left by the lack of an up to date Code causes.
In this latest statement, Ms Philipson asserted the government is ‘taking urgent action’ to get the Code before parliament, ‘getting it right’, and ‘showing leadership by implementing the clarity’ of the Supreme Court’s decision. The EHRC has, so far, bitten its tongue.
In its contemporaneous statement, the EHRC referred to having ‘recently’ been given feedback by the government on the draft it ‘submitted in September’. It went on to say that it had made some ‘adjustments’ signalling that these related mostly to providing practical ‘day to day’ examples; and that the draft Code is now back with the Secretary of State. The EHRC also reiterated that it will update its specific code for employers ‘in due course’, which we will be keeping a watchful eye out for but do not anticipate will follow quickly. In the meantime, the steer given in the Code to service providers etc will be a helpful indicator of what to expect in the employment code, but ultimately the legislation (including the Supreme court’s interpretation in FWS) sets the fundamental legal position.
Previous insights in our Sex Discrimination and Gender Reassignment Series
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
