The Equality and Human Rights Commission Consults on an Updated Statutory Code of Practice following For Women Scotland

Following the Supreme Court’s decision in For Women Scotland v The Scottish Ministers [2025] UKSC 16, and the Equality and Human Rights Commission’s (“EHRC”) “Interim Update on the Practical Implications”, the EHRC has launched a consultation on an updated Code of Practice for Services, Public Functions and Associations (“Code of Practice”) (“Consultation”).

The purpose of the Consultation is to gather feedback on updates being made to the Code of Practice in light of the For Women Scotland judgment. It is open until 30 June 2025.

What did the For Women Scotland judgment say?

The For Women Scotland judgment held that, for the purposes of the Equality Act 2010 (“EqA”) a “woman” is a biological woman (a person born female) and a “man” is a biological man (a person born male).  If somebody identifies as transgender, they do not change sex for the purposes of the EqA, even if they have a Gender Recognition Certificate; a transgender woman is a biological man, and a transgender man is a biological woman.

However, the Court was also clear that the EqA will continue to give transgender people protection from discrimination and harassment through the protected characteristic of gender reassignment, as it already does.

Read our full analysis of the judgment here.

What did the EHRC’s Interim Update say?

The EHRC outlined its initial view on the practical implications of the For Women Scotland judgment, particularly in relation to single sex spaces and services.

It said that transgender women should not be permitted to use single sex women’s facilities, and that transgender men should not be permitted to use single sex men’s facilities; but that transgender people should not be put in a position where there were no facilities for them to use. 

It gave no guidance on how to balance the competing rights of different groups in the event that these were in conflict with one another.

What is the Code of Practice and how is it being updated?

The Code of Practice includes practical guidance for service providers, associations and those delivering public functions, on how they should comply with the EqA; specifically how to avoid discriminating against those with protected characteristics. It was last updated in early 2025 (before the For Woman Scotland judgment).

The EHRC intends to update that practical guidance in light of the judgment, and states:

“We acknowledge the importance of [the changes being made to the Code of Practice] to people with the protected characteristics of sex, sexual orientation and gender reassignment. Our role is to ensure everybody’s rights are protected in line with the law, so that no one experiences discrimination or harassment as a result of their protected characteristic when using services. We are committed to developing guidance that provides legal clarity and practical support for organisations following the Supreme Court judgment.”

What is the Consultation on?

The EHRC is consulting on changes it is planning to make to the Code of Practice following the For Women Scotland judgment, including changes to definitions, explanations, and practical examples.

For example, the EHRC are proposing to change their definition of “legal sex” in the Code of Practice from “the sex that was recorded at your birth or the sex you have acquired by obtaining a Gender Recognition Certificate” to “the sex that was recorded at your birth”.

The EHRC will only be updating parts of the Code of Practice that are affected by the ruling.  A link to the list of proposed changes can be found here.

The EHRC has confirmed that:

• The Consultation will focus on whether updates to the Code of Practice clearly articulate the practical implications of the For Women Scotland judgment, and enable those who use it to comply with the EqA.  However, it will not seek views on the legal position on the definition of sex, which was made clear by the Supreme Court.

• As well as meeting with government officials across the country and briefing Parliamentarians, Q&A sessions will be held with stakeholders representing affected protected characteristic groups, to address the EHRC’s understanding of the For Women Scotland judgment, the consultation process, where views are being sought, and what can and cannot be changed in the Code of Practice.

• After reviewing responses and making necessary amendments, the EHRC will submit the Code of Practice to the Minister for Women and Equalities for approval and laying before Parliament.

Who can take part in the Consultation and how?

The Consultation is open to all stakeholders including individuals, charities, disability groups, businesses, health providers and local authorities.

Those who wish to participate can do so by filling in the survey on the EHRC’s website, which can be found here, or contacting them by email.

The Consultation will close at 11:59pm on 30 June 2025.

If your organisation needs further advice on any of the issues outlined in this article, please get in touch and our team of experienced Employment Lawyers would be happy to help.

The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.