The long-awaited draft Equality and Human Rights Commission’s ‘Code of Practice for services, public functions and associations’ has now been published and laid before Parliament. Read the full guidance here.
This updated Services Code will provide guidance on the application of the Equality Act 2010 in light of the Supreme Court’s landmark judgment For Women Scotland, including how the Act applies to the provision of single-sex services and spaces.
What does this mean now?
This draft Code will be hugely significant for organisations once approved, because although it does not change the law, courts and tribunals must take it into account when deciding challenges.
The draft Code retains many of the headlines of the version consulted on by the EHRC last year – including a steer that following the Supreme Court decision, single-sex services (if provided) must be on the basis of biological sex, and that inclusive provision of services (for e.g. women and trans women) “could also be unlawful”, while continuing to recognise the protection that trans people have under the protected characteristic of gender reassignment.
However the draft has also changed materially in a number of aspects, including in its steer on practical application – for example recognising the practical and legal complexities in asking service users about biological sex, and suggesting that it will be unlikely to be appropriate to do so for ancillary services (such as access to toilets).
For organisations, the real task now will be to apply the statutory tests (and the Code once finalised) carefully and calmly – identifying a legitimate aim, assessing proportionality and making evidence-based decisions. The draft Code places an emphasis on assessing the impact of decisions on all service users. Blanket policies will often be at greater risk of challenge than carefully reasoned fact-specific decisions – where organisations can take the opportunity to act with kindness, tolerance and respect for everyone affected.
Over the coming weeks we will be sharing further commentary, and practical actions that employers and service providers will need to take in light of the guidance. Sign up here to receive our update directly to your inbox and find out more information here about how we can help if you have any questions about your obligations under the Equality Act 2010.