The new EHRC Code of Practice for services, public functions and associations comes into force on Wednesday 5 August.
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, which courts and tribunals must take into account when deciding claims under the Act. For charities, the Charity Commission has confirmed that it plans to issue supplementary guidance in the Autumn – but that this will not alter the fundamental principles in the Code.
Following the Supreme Court decision, single-sex services (if provided) must be on the basis of biological sex, and the Code states 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.
The Code also recognises the practical and legal complexities in asking service users about biological sex, and anticipates that organisations may need made material changes to provision of single sex facilities (such as access to toilets). According to the accompanying equality impact assessment:
‘Our middle scenario estimate based on the cost assessment shows annualised costs to be £81.7m. This is driven by private sector costs on facilities…. such as toilets and changing rooms… Most of the costs (around 82%) across the 10-year appraisal period are expected to fall on the private sector. The public and voluntary sectors each account for 9% of total costs.’
For organisations, the real task now will be to apply the Code, and the statutory tests it reflects, 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.
We can help if you have any questions about your obligations under the Equality Act 2010 – please contact Mindy or Suhan.
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 advice.