22/05/2025

On 20 May 2025, the GB Equality and Human Rights Commission (EHRC) launched its public consultation on its Code of Practice for services, public functions and associations

The aim of the Consultation is to gather feedback on proposed updates to its Code of Practice. These changes follow the UK Supreme Court ruling in For Women Scotland Ltd v The Scottish Ministers on 16 April 2025, which clarified the legal definition of sex under the Equality Act 2010.

Key Change: Legal Definition of Sex

Previously, the EHRC defined legal sex as either the sex recorded at birth or the sex acquired by obtaining a Gender Recognition Certificate (GRC). However, the Supreme Court ruling determined that a GRC does not change legal sex under the Equality Act. As a result, the updated definition now states:

“Legal sex is the sex that was recorded at your birth.”

This revision aims to provide greater clarity on how sex-based rights and protections are applied in legal and workplace contexts.

Chapters Under Review

The consultation examines changes across several key chapters of the Code. Employers should be aware of the following:

Chapter 2: Who Has Rights?

This section explores rights under Part 3 (Services & Public Functions) and Part 7 (Associations) of the Equality Act 2010. It also outlines when and how requests regarding an individual’s sex at birth may be made, and when such requests could be deemed unlawful.

Chapter 4: Direct Discrimination

Updates include an example of sex discrimination based on perception, particularly in cases involving gender reassignment.

Chapter 5: Indirect Discrimination & Objective Justification

A new example highlights associative indirect discrimination, which occurs when individuals experience the same disadvantage despite not sharing a protected characteristic.

Chapter 8: Test for Harassment

Employers can provide feedback on what constitutes unwanted conduct “related to” a protected characteristic.

Chapter 12: Associations

This section seeks input on the circumstances under which associations may restrict membership to individuals who share a particular protected characteristic.

Chapter 13: Exceptions

Updated sections cover competitive sport and separate & single-sex services.

A newly added section outlining the rationale for single-sex services, including the possible legal consequences of offering only mixed-sex options.

New content detailing policies and exceptions for single-sex services, clarifying that service providers may need to establish specific guidelines for their offerings.

An updated section addressing single-sex services in relation to gender reassignment, advising service providers to carefully consider their approach to trans individuals’ access when deciding on service provision.

Consultation Period

The consultation is open for six weeks and will close on 30 June 2025.

Impact for Employers in Northern Ireland

While the EHRC operates in Great Britain, the Equality Commission for Northern Ireland (ECNI) is also considering the implications of the Supreme Court ruling and we expect to see further guidance from ECNI in near future.