21/10/2025
The Equality and Human Rights Commission (EHRC) has formally called on the government to expedite the implementation of its updated draft Code of Practice for services, public functions, and associations (Code). The Code is a guide from the EHRC on the interpretation of the Equality Act 2010 (Act), and it provides guidance on how to provide public services in accordance with the Act.
This recent move by the EHRC comes in response to legal and human rights concerns following the Supreme Court’s ruling in For Women Scotland v Scottish Ministers case, which has rendered the current Code inconsistent with the law. In the For Women Scotland Ltd v The Scottish Ministers case, the Supreme Court clarified that the terms “woman” and “sex” under the Equality Act 2010 mean “biological woman” and “biological sex”, not gender or sex acquired or certificated through a Gender Recognition Certificate. Should you wish to read about the case, please take a look at our article, Supreme Court ruling – ‘Sex’ and The Equality Act 2010.
In a letter dated 15 October 2025, the EHRC highlighted the need to withdraw the existing Code, which remains in force despite its incompatibility with the Supreme Court’s decision. In the letter, the EHRC highlights that continued reliance on the outdated Code by organisations may create uncertainty as to the EHRC’s ability to take enforcement action, and cause confusion for duty-bearers.
The updated draft Code was submitted to the government on 4 September 2025, and it currently awaits formal approval before it can be laid before Parliament for a mandatory 40-day scrutiny period. The government has subsequently confirmed that it is considering the draft Code, which will be laid before Parliament “if the decision is taken to approve it”.
Withdrawal of Interim Update
In the meantime, the EHRC has withdrawn its own interim update from its website. The interim update, originally published on 25 April 2025 and revised on 24 June 2025, was designed to address the practical implications of the For Women Scotland ruling. However, it faced criticism for being rushed and too simplistic. For details of the interim update, please see our previous article.
The EHRC has advised duty-bearers to seek specialist legal advice to understand their obligations under the Equality Act 2010. This recommendation underscores the complexity of the legal landscape during this period. For further details, please see the EHRC’s new update.
Human Rights Concerns
On 3 October 2025, the Commissioner for Human Rights of the Council of Europe wrote to the Chairs of the Joint Committee on Human Rights and the Women and Equalities Committee expressing concern for trans people in the UK. The Commissioner noted that the Supreme Court’s decision in For Women Scotland did not engage with human rights considerations. In the letter the Commissioner also referred to the provision of clear guidance as “crucial,” which aids the push for clarity.
What does this mean for employers?
Without clear and updated guidance, organisations currently risk acting on incorrect information or assumptions, which could potentially lead to discrimination. This recent development means that employers should not rely on outdated guidance or updates; instead, they are urged to seek expert legal advice and prepare to adapt to the forthcoming Code.
How can we help?
We are highly experienced in supporting employers to navigate complex and sensitive employee relations conversations involving complex gender identities, gender reassignment and single-sex spaces. If you would like further information or support on any of the key actions above, please contact our experts Courtney Janotta, Jodie Sinclair, Alastair Currie, or Sarah Lamont who will be happy to help.
We also advise service providers, education bodies and public authorities on the Equality Act 2010, including on the balancing of different interests, positive action, the Public Sector Equality Duty and Equality Impact Assessments. If you would like further information or support on this please contact Virginia Cooper. .
