30/06/2026
Written by Jane Bennett, Julia Jones, Stuart Marchant, and Aria Yazdani.
Service Providers (which include services provided by public authorities, such as the provision of NHS healthcare) and those exercising public functions will need to be aware of the EHRC’s updated Code of Practice for Services, Public Functions, and Associations. On 30 June 2026, the 40-day parliamentary review period for the Code of Practice will end. The Code of Practice will then come into force once a commencement order is made. In this article, we consider some of the key changes in the Code of Practice and consider for the NHS specifically what further guidance is expected and what this could mean in terms of the NHS pledge to deliver same sex accommodation.
The Equality Act 2010
The Equality Act 2010 is a key piece of legislation which sets out the law on equality and discrimination, by reference to a number of protected characteristics. These include gender reassignment (which includes trans people who propose to undergo the process of gender reassignment), sex and sexual orientation.
The Equality Act 2010 prohibits direct discrimination, indirect discrimination, harassment, and victimisation in connection with protected characteristics.
In the context of the provision of services, the Equality Act 2010 provides for a number of exceptions where discrimination on the basis of particular protected characteristics may be lawful.
This can include, for example, in the context of single-sex services and separate-sex services.
The EHRC Code of Practice
The EHRC Code of Practice is made under section 14 of the Equality Act 2006. The Code of Practice applies to Service Providers, public bodies, organisations which exercise public functions, and associations.
Once the updated Code of Practice takes effect, it will provide clear interpretation and expectation as to how those organisations should comply with their legal duties in line with the Equality Act 2010, taking into account the impact of a recent landmark case.
Why is the Code of Practice being updated?
The update follows the landmark ruling in For Women Scotland v Scottish Ministers [2025] UKSC 16, in which the Supreme Court held that the terms “woman” and “sex” under the Equality Act 2010 means “biological woman” and “biological sex”, not gender or sex acquired or certificated through a Gender Recognition Certificate.
It is important to note that the judgment is limited to the definitions in the Equality Act 2010. However, a wide range of different issues and organisational functions needed to be considered including, but not limited to, the operation of single-sex services such as bathrooms, changing rooms, hospital wards, health and social care services and accommodation; and how to balance competing interests within these environments.
Some key changes within the updated Code of Practice
‘Sex’ under the Equality Act 2010 refers to biological sex, and cannot be changed
The original Code of Practice provided that trans people should be treated according to their acquired gender, including in relation to single-sex services and spaces. Paragraph 2.50 of the updated Code of Practice explicitly reaffirms that a Gender Recognition Certificate does not change a person’s sex for the purposes of the Equality Act 2010.
The updated Code of Practice also emphasises that if trans people are permitted to access single-sex services and spaces which do not align with their birth sex (for instance, a trans woman accessing women’s-only services, or a trans man accessing men’s-only services), then the service can no longer be deemed to be single-sex. As such, Service Providers risk sex discrimination by excluding other people of the opposite sex from that service. [Paragraphs 13.131 - 13.144]
Decision-making around single-sex and separate-sex services and spaces
When assessing whether a single-sex or separate-sex service or space can be provided lawfully under the Equality Act 2010, the Provider must consider, amongst other things, whether doing so is a proportionate means of achieving a legitimate aim (see Schedule 3 paragraphs 26 and 27 of the Equality Act 2010).
The Code of Practice provides a number of examples of legitimate aims in the context of single-sex and separate-sex services and spaces at paragraphs 13.95-13.114. Broadly, these include ensuring the safety, privacy, comfort, and dignity of service users.
Particular attention is drawn to the Code of Practice’s provisions on proportionality. The Code of Practice states that Service Providers should consider all potential service users and whether there is a fair balance between:
- The benefits of offering the service as a separate-sex or single-sex service;
- The needs of those accessing the services;
- The impact on those excluded from accessing the service. [paragraph 13.115]
Excluding trans people from single-sex and separate-sex services and spaces which align with their gender may require trans people to use services or spaces which align with their birth sex, which can potentially impact welfare or cause distress. Under the Code of Practice a Service Provider should consider whether the disadvantage to trans people in providing a single-sex or separate-sex service outweighs the benefit of achieving the legitimate aim, and whether a less intrusive option may be available (such as by providing a separate service open to everyone, or by adapting the existing service so that it is open to everyone) [paragraphs 13.119 – 13.121, 13.126]. The impact on trans people should also be considered when deciding whether to offer only a single-sex or separate-sex service [paragraph 13.143].
The Code of Practice also recognises that such adaptations may not be reasonably possible, which may be because of the type of service provided, the service users’ needs, the physical constraints of any building, or the disproportionate financial costs of making the adaptations [paragraphs 13.126, 13.141].
The Code of Practice further notes that there may be circumstances in which a Service Provider may lawfully exclude a trans person from a single-sex or separate-sex service which aligns with their birth sex, where the trans person presents as the opposite sex. The Code provides an example of a trans man being excluded from a women-only service because he presents as a man, and so other service users could reasonably object to his presence. Any situation in which exclusion of a trans person from a single-sex space designated for their birth sex is being considered must be approached with extreme sensitivity, and particular care should be given to any assessment of proportionality. The Code of Practice makes clear that a claim for unlawful discrimination based on gender reassignment could be brought in such a case, if the exclusion is disproportionate [see Paragraphs 13.145-149].
Asking about an individual’s sex
Service Providers must be able to objectively justify asking individuals about their sex, and such a request must be a proportionate means of achieving a legitimate aim. This is required to prevent infringements of individuals’ right to private and family life under Article 8 of the ECHR, and also to ensure that such requests do not amount to indirect discrimination.
The Code also states that it may be legitimate to ask individuals accessing a single-sex or separate-sex service that they are of the sex which allows them to access that service. In order to ensure that such requests are made proportionately, this should be done only where there is clear evidence of access by individuals of the opposite sex. The Code of Practice refers to the individual’s physique or physical appearance, behaviour or concerns raised by other service users. We would caution Service Providers that appearance alone is not always a clear indicator of an individual’s sex, and that requests must ultimately be proportionate and justifiable by way of any reasonable defence.
Information about sex must be treated as special category personal data and must be held securely, retained for no longer than is reasonably necessary for achieving a legitimate purpose, and accessible only to those who need it for that legitimate purpose.
What steps do organisations need to take and what further guidance is expected for the NHS?
Organisations and Service Providers are expected to ensure compliance with current legal obligations under the Equality Act 2010. The current legal framework requires Providers to deliver services in a lawful, fair and non-discriminatory manner, regardless of the status of the Code of Practice.
As emphasised by the Equality and Human Rights Commission, organisations should proactively review and adapt their policies and practices to reflect the law as it stands, ensuring that service users’ rights are protected in line with the Equality Act 2010 and case law.
The NHS (through NHSE) is due to publish revised guidance to Providers about how to meet these obligations. NHSE state: “Revised guidance which supports privacy, dignity and safety for all patients in hospital accommodation will be published as soon as possible” which could indicate a move away from targets on single sex accommodation. However, until this guidance is published, NHS Providers are expected to measure and report breaches of the NHS Constitution pledge on same sex accommodation.
How we can help
We are proud to have a specialist multi-disciplinary team spanning our Health & Care Regulatory, Employment, and Litigation & Advisory departments, dedicated to advising on matters related to complex gender identity and philosophical belief. This team brings a unique combination of experience and skill from across the health, social care, local authority and independent sectors. We can help review policies in light of these changes and advise on any issues arising under the Equality Act 2010.
We have a broad depth of knowledge across complex legal queries, human rights, data protection / records management, substantive policy reviews and training in respect of all aspects of both the Gender Recognition Act 2004 and Equality Act 2010. In particular, the team advises NHS acute Providers, mental health Providers, and Integrated Care Boards, as well as Local Authority and private Providers in relation to the provision of health and social care to individuals, including on hospital wards, in prisons, and in wider public and private care settings, as well as dealing with challenging legal queries for sensitive gender related matters in relation to the same.
Consulting legal experts across all relevant fields brings a unique and innovative perspective to clients to meet the wider-ranging challenges faced organisationally as you deal with the various and complex legislation. Our team understands the practical way the relevant legal frameworks impact with a range of issues faced, and the combined skill set of specialist lawyers brings a rich offering and benefit to both our public and independent sector clients.
If you wish to discuss the issues within this article please contact Jane Bennett, Associate, Julia Jones Partner, or Stuart Marchant, Partner.
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