EHRC Services Code: updated draft still awaiting Government approval

What is the EHRC Services Code and why is it being updated?

The Equality and Human Rights Commission (“EHRC”) submitted an updated draft of its Code of Practice for Services, Public Functions and Associations (“Services Code”) to the Government for approval on around 5 September 2025. It has been updated to reflect the Supreme Court’s recent ruling on the definition of “sex” for the purposes of the Equality Act 2010. (Find out more about the judgment in the case of For Women Scotland here.)

There is also an Employment Code of Practice (“Employment Code”), which will be updated in the same way, once the Services Code has been finalised.

The Services Code provides guidance on the application of the Equality Act in the provision of services. Courts will have regard to it when applying the law and determining disputes related to service provision under the Equality Act.

Similarly, the Employment Code provides guidance on the application of the Equality Act in the context of employment, and courts will have regard to it when applying the law and determining disputes related to employment provisions under the Equality Act.

What are the next steps in the process?

The Services Code is in the process of being considered by the Government and, subject to ministerial approval, will be laid before Parliament for 40 days before coming into force. Once the Services Code has been approved, the Employment Code will also be updated along similar lines. (See our article on this here.)

In the interim, the EHRC has withdrawn its interim update on the practical consequences of the For Women Scotland judgment (which was first published on 25 April 2025, and updated on 24 June 2025); which had received criticism for being oversimplistic and inaccurate.

The EHRC’s actions follow a letter from the Commissioner for Human Rights of the Council of Europe sent on 3 October 2025 to the Chairs of the Women and Equalities Committee and the Joint Committee on Human Rights in the UK. In that letter, the Commissioner raised concerns about the current climate for transgender people in the UK, noting that the Supreme Court decision in For Women Scotland did not engage with a number of human rights issues. The Commissioner goes on to warn against tendencies to see the human rights of different groups as a “zero-sum game”, which “risks certain inferences being drawn from the UK Supreme Court judgment that could lead to widespread exclusion of trans people from many public spaces” and which “may severely infringe on their ability to participate fully and equally in society”. The Commissioner says it will be crucial for stakeholders to be given clear guidance on how the inclusion of transgender people can be achieved across all areas, and how exclusion can be minimised.

Why is it taking so long?

In early November, in the House of Lords, the Minister for Women and Equalities was asked why the Government is yet to approve the EHRC’s updated Services Code. She explained that the draft is still being reviewed.

Specifically, the EHRC has been asked to provide a cost assessment to help the Government decide whether a full regulatory impact assessment is needed before the Services Code can be approved. The Government is also weighing up the risks and benefits of withdrawing the existing Services Code, pending approval of the updated draft, as the EHRC has requested.

In the meantime, it was confirmed that, regardless of the status of the Services Code, the Supreme Court’s decision in For Women Scotland as to the definition of “woman” in the Equality Act 2010 is binding, and that anyone who is concerned about how to apply it in practice should seek legal advice.

What should organisations do in the interim?

The Chair of the EHRC has urged organisations not to wait for the formal publication of the Services Code before reviewing and revising their policies to ensure compliance with equalities law.

In addition, the EHRC has already begun regulatory action against organisations whose policies misrepresent the law on gender self-identification and access to single-sex spaces (see our article on this here, and the EHRC’s announcement here).

On 15 October, the EHRC wrote to the Minister for Women and Equalities, urging the Government to ensure that accurate and up-to-date statutory guidance on the Equality Act 2010 is available to those who need it as soon as possible. It pointed out that it had been six months since the Supreme Court’s judgment in For Women Scotland, and six weeks since the updated Services Code was sent to the Government for consideration. The EHRC’s letter to the Government can be found here.

With the EHRC’s interim update withdrawn, and pending ratification of the draft Services Code, we understand that both the EHRC and the Government are advising duty-bearers to take specialist legal advice on their obligations, including under the Equality Act 2010 and the Human Rights Act 1998.

Employers, membership associations, educational bodies and service providers alike should take this opportunity to review relevant policies and prepare for updated guidance, seeking legal advice where necessary.

If you would like to discuss 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.