EHRC Draft Code on provision of toilets and other facilities

On 21 May 2026, the Minister for Women and Equalities laid the Equality and Human Rights Commission’s (EHRC) updated Code of Practice for Services, Public Functions and Associations (the Code) before Parliament. Parliament then had 40 days to review the Code. The parliamentary review period ended on 30 June, and the Code will now come into force once a commencement order is made.

Background

The update follows the Supreme Court’s judgment in R (For Women Scotland Ltd) v Scottish Ministers [2025]. The Court, in a unanimous decision delivered by Lord Hodge, held that, for the purposes of the Equality Act 2010, the terms “sex”, “woman” and “man” refer to biological sex, biological women and biological men.

The case arose from a challenge to Scottish Government guidance which treated transgender women with a Gender Recognition Certificate (GRC) as women for the purposes of legislation on gender representation on public boards. The judgment ended a lengthy legal challenge led by For Women Scotland (FWS) and other campaigners. While the decision may have settled the interpretation of key terminology in the Act, it also raised fresh legal questions about how the Equality Act 2010 (EqA 2010) should be applied in practice.

The updated Code

The updated Code is intended to assist service providers, those exercising public functions, associations, legal advisers and courts in interpreting and applying the Equality Act 2010. While the Code does not change the law, it provides detailed guidance to help organisations understand and comply with their legal obligations.

Although the Code is not yet in force and does not itself create new law, courts and tribunals may take a statutory code of practice into account. In addition, the legal interpretation established in For Women Scotland already forms part of the legal landscape.

Importantly, the updated draft Code is aimed at service providers, those exercising public functions and associations. It does not provide direct guidance for employers, who remain subject to the employment provisions of the EqA 2010 and other workplace duties. Nevertheless, employers should not ignore it, as it signals how the EHRC and the courts are likely to approach issues relating to sex, gender reassignment and the provision of single-sex or separate-sex services more generally.

Key points from the draft Code

Definition of sex in the Equality Act 2010

The Code confirms that the terms “sex”, “woman” and “man” in the EqA 2010 refer to biological sex, biological women and biological men. It further states that possession of a Gender Recognition Certificate does not alter a person’s sex for the purposes of the Act.

Single-sex services and inclusion

The most controversial aspect of the Code is likely to be its guidance on single-sex and separate-sex services. Providing a service exclusively to either men or women would ordinarily amount to direct discrimination. However, the EqA 2010 recognises that there are circumstances in which single-sex or separate-sex services, facilities or associations may be necessary or reasonable and contains specific exceptions to allow for this.

It is not a breach of the Equality Act to make different arrangements for the participation of male and female competitors in sport. The Code provides that any sex-based rules or arrangements relating to participation in a gender-affiliated activity should be applied on the basis of biological sex. As a result, trans people (people with the protected characteristic of gender reassignment) should not be included in single-sex or separate-sex competitions for the sex with which they identify.

Justifying restriction and exclusion

Separate-sex services may be lawful where a joint service would be less effective and providing the service separately to men and women is a proportionate means of achieving a legitimate aim.

Single-sex services can also be provided where the service is, or is likely to be, used by more than one person at a time and a woman might reasonably object to the presence of a man, or vice versa. The Code notes that it is likely to be reasonable for a woman to object to the presence of a man if she will be getting undressed or in a vulnerable situation, and gives the example of a women-only communal changing room in a sports facility.

When relying on these exceptions, service providers must be able to show that the approach is a proportionate means of achieving a legitimate aim. This requires a fair balance between the benefits of offering the service on a single-sex or separate-sex basis, the needs of those accessing it and the impact on those excluded from it.

The Code states that, if a service provider decides to have a single-sex or separate-sex service and allows a trans person to use the service intended for the opposite sex, the service will no longer be a single-sex or separate-sex service and is likely to amount to unlawful discrimination.

The Code notes that, in many cases, it may be proportionate to take a holistic approach to service provision by offering a mix of services, such as separate-sex toilets alongside individual lockable rooms which can be used by people of either sex. However, alternative arrangements may not always be reasonably possible.

Continuing protection for trans individuals

Trans individuals continue to be protected from:

• direct and indirect discrimination;
• discrimination by association or perception; and
• harassment related to sex or gender reassignment.

Asking about an individual’s sex

The updated Code introduces detailed guidance on when and how organisations may ask individuals about their sex. Any request must be justified and proportionate, taking into account privacy rights and data protection obligations.

While the Code recognises that physical appearance may, in some circumstances, justify seeking confirmation of sex, organisations are advised to approach such enquiries with sensitivity and caution, and to avoid public, intrusive or confrontational situations.

Emerging equality issues

The Code also addresses a number of emerging equality issues. It confirms that conduct related to breastfeeding may amount to unlawful harassment on the grounds of sex. It also provides updated guidance on disability discrimination, recognising that menopause symptoms and Long Covid may amount to disabilities where they have a substantial and long‑term adverse effect on an individual’s ability to carry out normal day‑to‑day activities. Menopause‑related claims may therefore arise under disability, sex and age discrimination provisions.

What this means for employers

Although the Code does not apply directly to employment or workplace policies, it is important for employers to understand its implications. It offers valuable insight, particularly for employers who also provide services to the public.

Recommended action points

• Review whether existing policies and practices are consistent with the EqA 2010 and reflect the approach set out in the updated Code.
• Assess whether workplace arrangements involving toilets, changing areas or other sex-based spaces are supported by a lawful and proportionate rationale.
• Train HR, managers and customer-facing teams on how to handle sensitive issues respectfully, including complaints and competing rights scenarios.
• Take legal advice before making material changes in higher-risk areas, particularly where policies may affect employee relations, health and safety or discrimination risk.

BTO Solicitors can help to review policies in light of these changes and advise on any issues arising under the EqA 2010.

Morgan Francis, Trainee Solicitor (Author of article): mfr@bto.co.uk / 0131 222 2936

Amanda Buchanan, Partner: abr@bto.co.uk / 0141 225 5268