21/10/2025

In Great Britain, the Equality and Human Rights Commission (EHRC) has formally urged the UK Government to act swiftly in implementing its updated draft Code of Practice. The EHRC submitted its draft Code to the government on 4 September 2025, for approval and thereafter it must be laid before Parliament for a 40-day period before it comes into force.

In a letter dated 15 October 2025, the EHRC raised concerns that the current version of the Code is now legally outdated following the Supreme Court’s decision in For Women Scotland v Scottish Ministers [2025] UKSC 16.

The EHRC is calling on the Government to revoke the current Code immediately and lay the updated version before Parliament without delay. This would provide clarity for courts, tribunals, and organisations with legal responsibilities under equality legislation.

Following submission of the draft Code, the EHRC has withdrawn its interim guidance on the practical implications of the For Women Scotland ruling. The guidance, originally published in April and updated in June 2025, faced criticism for being rushed and lacking accuracy. In the absence of formal guidance, the EHRC advises employers and other duty-bearers to seek specialist legal advice on their obligations under the Equality Act 2010 and the Human Rights Act 1998.

The EHRC’s actions come shortly after a letter from the Commissioner for Human Rights at the Council of Europe, dated 3 October 2025, which expressed concern about the treatment of trans people in the UK. The Commissioner noted that the For Women Scotland judgment did not address human rights issues and warned that misinterpretations of the ruling could lead to widespread exclusion of trans individuals from public spaces. He emphasised the urgent need for clear, inclusive guidance to support stakeholders in upholding rights and minimising exclusion.

Northern Ireland’s Position

 In Northern Ireland, the legal and policy landscape differs. The Equality Commission for Northern Ireland (ECNI) published its own roadmap in June 2025 and had initially planned to seek a High Court declaration on the applicability of For Women Scotland in Northern Ireland by end of September 2025. This is due to Northern Ireland’s unique legal protections under Article 2 of the Northern Ireland Protocol and the “no diminution” commitment.

As of 10 October 2025, ECNI confirmed it is currently reviewing consultation responses and will provide further updates in due course. In the meantime, ECNI has issued interim guidance, which employers in Northern Ireland are encouraged to consult.

What Employers Should Do

Employers across the UK should be aware of the evolving legal context and the potential implications for workplace policies and practices. In light of the uncertainty surrounding the current Code and its alignment with recent case law, organisations are advised to:

• Monitor developments from the EHRC and ECNI.
• Review internal policies to ensure they reflect current legal standards.
• Seek legal advice where necessary, particularly in relation to equality and human rights obligations.
• Ensure any guidance used is up to date and legally sound.

We will continue to keep members informed as further updates become available.