Following the Supreme Court’s ruling on the definition of “sex” last month, the equalities watchdog launched a public consultation to update its code of conduct for services, functions, and associations.
The court clarified its position regarding the definition for’sex,’ as it appears in the Equality Act 2010, on 16 April: A woman is a natural woman and a male is a natural man.
The Equality and Human Rights Commission held a consultation last year for 12 weeks on broader revisions of the code. This was to reflect a variety of legislative changes and case law that have occurred since the original publication in 2011.
The EHRC is now conducting a new consultation in response to the Supreme Court ruling For Women Scotland v Scottish Ministers and the widespread desire for authoritative guidance regarding its implications.
The EHRC has incorporated these into the relevant sections in the code of conduct and is now seeking views to determine whether the updates are clear and articulate the practical implications arising from the judgment, and if they enable those using the code to comply with and understand the Equality Act.
Baroness Kishwer, chairwoman of the EHRC, stated: “Since this judgment was delivered, it has become obvious that authoritative guidance is needed. Our job is to do that.
“It’s important that our code be both accurate and clear for those who use it. We want to know what you think about the clarity of the updates. Please take six weeks to provide feedback. We will carefully consider each response and make any necessary changes to the draft code.
“People with protected features should never be harassed or discriminated when using a service. When services are offered on a one-sex basis, they must be provided in a manner that is consistent with law, protects all rights and ensures dignity and respect for everyone. It is important that service providers are aware of what they must do to comply with law and that users feel confident that all service providers are doing so.
The Supreme Court’s ruling led to the EHRC changing the legal definition of sexuality, which is applied across the code.
The old language reads: “Legal sexuality is the sex recorded at birth, or that which you acquired through a Gender Recognition Certificate (GRC). The new phrase simply states: “Legal sexuality is the gender recorded at birth.”
The consultation begins today (20 May). It will close on 30 June 2025. initially wanted a consultation lasting only two weeks, but the EHRC changed its mind after put pressure on them to extend it to six weeks.
The EHRC will then review the responses and make any necessary changes to the draft code. The code will be sent to Bridget Phillipson (the women and equality minister) for her approval and then laid in Parliament before it becomes a statutory document.
Falkner said: “This complex area of the law affects the rights of individuals with protected characteristics such as sex or sexual orientation, and gender reassignment. We are aware that our society has strong opinions about the way the law should interpreted, and whether or not it strikes the right balance. If everyone’s rights are protected, as the Supreme Court has confirmed that the law intends, service providers and their lawyers need to help navigate these challenges.”
Falkner concluded, “The consultation launched will ensure that our code of service practice is an authoritative and useful guide. Please let us know if it could be made clearer or easier to understand. You can then be sure that, no matter if you are a shopkeeper or chairperson of a local sport club, the manager of a hospital or hotel, an HR professional or solicitor – there will be guidelines to follow.
What changes are made to the Code of Practice?
In its consultation, the EHRC asks that respondents consider updated drafts of the code. The changes to the code of practice are spread across six chapters, except for the change in the definition of sexuality. These include:
Chapter 2. Who has rights
- The new content explains that GRCs don’t change people’s legal sexuality and what protections they have regardless of whether or not there is a GRC.
- There are new information on how to ask for sex during birth and a new definition of sex during birth.
- The description of sexual orientation has been updated to specify that a woman attracted to a man is either lesbian or gay.
Chapter 4 – Direct discrimination
- In the context of gender and sex reassignment, a new example on discrimination based on perception.
- Revisions to the content regarding pregnancy and discrimination against trans men.
Chapter 5 – Indirect discrimination
- This is a new example of indirect sexism, where people can experience the same disadvantage even though they don’t share the protected characteristic. It occurs in the context sex and gender change.
Chapter 8, Harassment
- A new example of harassment based on sexual orientation, which shows how harassment can be triggered by a perceived protected characteristic in the contexts of gender reassignment and sex.
Chapter 12, Associations
- This new example about women-only organizations explains the legality of refusing applications based on sex or gender reassignment.
Chapter 14 – Exceptions
- Updated section on competitive sports
- Updated section on single-sex services for both men and women.
- There is a new section that discusses the legal implications of only providing mixed-sex service, as well as the justifications for offering single-sex or even mixed-sex.
- Content on single-sex policies and exceptions, explaining that service providers might need to create policies for their provision.
- A section updated on single-sex in relation to gender reassignment. This explains how service providers should take into account their approach towards trans people when deciding if they want to offer a singlesex service.
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