The EHRC has updated its Code of Practice on services, public functions and associations for the first time since 2011. The new draft Code was laid before Parliament on 21 May 2026 and replaces an instrument that has been out of step with the law for years.
Most of the press coverage of the EHRC single sex spaces guidance is, understandably, about single sex spaces. Naturally, this means employers are asking us: what does this mean for our workplace?
The background to this update
In April 2025, the Supreme Court ruled in For Women Scotland Ltd v The Scottish Ministers that “sex” in the Equality Act 2010 means biological sex. A trans woman is legally a biological male for the purposes of the Act, and a trans man is legally a biological female, regardless of whether they hold a Gender Recognition Certificate.
That ruling did not remove gender reassignment as a protected characteristic. Trans people, and those who do not identify as their biological sex or as either sex, are still protected from discrimination, harassment and victimisation. What was clarified was the legal protection assigned to sex itself, and that change runs through how single sex services can lawfully be operated.
The EHRC issued interim guidance in June 2025, which was challenged and held to be lawful by the High Court in February 2026. The Commission then revised the full Code after consultation. That revised Code is what was laid before Parliament on 21 May.
The Code is not yet in force. After the 40 day parliamentary scrutiny period, if there is no fatal prayer motion, the EHRC may issue the Code. It only takes legal effect once a separate commencement order is made by the Minister. Until then, the existing 2011 Code remains the applicable statutory Code, although the Supreme Court ruling and the High Court decisions already bind employers and service providers regardless of what the Code says.
What is a single sex service, and what protection does the exception actually offer?
The Equality Act’s default position is that you cannot discriminate against someone on the basis of a protected characteristic when you provide a service. If you ran a gym and said “no men allowed,” that would be direct sex discrimination against men, and unlawful.
Schedule 3 of the Equality Act contains a set of exceptions; the single sex services exception (sometimes called the separate services exception) is one of them. This is what allows a service provider to lawfully run a women only refuge, a men only support group, a women only gym session or a single sex changing room, even though those services would otherwise be direct sex discrimination against the excluded sex.
The exception is not automatic. To rely on it, a service provider must show that the service is a proportionate means of achieving a legitimate aim, and that its requirement is because of one of the set reasons. These reasons include things like privacy or decency, the presence of physical contact, the nature of the service requiring it to be provided differently to men and women, and circumstances where joint provision would be less effective.
The protection that the exception offers is significant; it means a service provider can refuse to admit people of the opposite sex without that refusal being unlawful sex discrimination. Without the exception, the same refusal would be unlawful.
That is why the new Code’s clarification matters so much; it sets out when certain spaces will maintain the protection of the single services exemption.
What the new Code actually says about single sex spaces
The updated Code makes a small number of significant changes:
- Single sex services are legally defined by biological sex. A service cannot be classified as “women only” if it admits trans women, or “men only” if it admits trans men. If a “women only” service admits trans women (who are biological males for the purposes of the Act), the service is no longer single sex within the meaning of the exception. The service provider loses the exception and the refusal to admit biological men then becomes potentially unlawful sex discrimination against the men who are excluded.
- Trans people, and people who do not identify as their biological sex or as either sex, retain the protected characteristic of gender reassignment. Excluding them from a single sex service is a power that must be exercised proportionately and on a case by case basis. It is not a blanket licence.
- Trans people must always have somewhere to go; for essential services such as toilets, the Code says it will almost never be proportionate to leave a trans person with no option at all.
- Asking about a person’s sex may be a legitimate part of operating a lawful single sex service, but only where there is a genuine need and the request is made proportionately.
- New material has been added on menopause, breastfeeding, single sex sport, and asking about sex. We will cover those in a separate blog.
Does this Code apply to employers?
The Code itself is clear, and the Explanatory Memorandum laid alongside it is clearer still. Paragraph 9.4 of the Memorandum states: “This Code does not relate to the employment practices of businesses, charities or voluntary bodies.”
The Code statutory guidance for those providing services, exercising public functions, or running associations. Employment is governed separately, by the Equality Act’s employment provisions and the Health and Safety (Workplace) Regulations 1992.
That does not let employers off the hook, however, as the Supreme Court ruling on the meaning of sex applies across the Act, including the employment provisions. Plus – in February 2026 the High Court confirmed in Good Law Project v EHRC that workplace facilities must be operated on a biological sex basis to comply with the Health and Safety Regulations.
So the practical position for employers is:
- Workplace toilets and changing facilities must operate on a biological sex basis.
- Where individual lockable rooms are provided, trans employees may use those.
- Leaving a trans employee with no usable provision is likely to be discriminatory.
- Gender reassignment remains a protected characteristic in employment. Less favourable treatment, harassment or dismissal connected to a person’s trans status remains unlawful, and managers can carry personal liability for discriminatory conduct alongside the company.
What you should actually do in response to this code
Here is the order we would suggest:
- Look at your physical facilities first, not your policy.
The policy follows the facilities, not the other way round. If your workplace already has individual lockable rooms, you are in a much easier position than an employer with shared open plan changing rooms. Walk the building and figure out if there are any single spaces that need to be addressed.
- Audit the policy you have got.
If your current toilet and changing room policy was written on a gender identity basis (the position before the Supreme Court ruling), it needs updating. If you have no policy at all, this is the moment to write one.
- Where you can, provide individual or gender neutral facilities.
Practically, this is the simplest solution. It protects the legal position on single sex provision and gives trans employees somewhere to go.
- Do not act on an individual employee’s situation without taking advice.
Whether the issue is a trans employee raising concerns or other employees raising objections, individual situations need individual advice. The legal framework is now reasonably clear at a high level, but still complicated at the level of any one workplace; please reach out to us for advice on your circumstances.
- Train your managers before they have to handle it.
Most managers are nervous about this; they are worried about saying the wrong thing or giving the wrong direction. We can offer short, practical sessions on what the law says, what to do if an employee raises something, and when to escalate to HR makes an enormous difference to how these conversations land. It also significantly reduces the risk of a manager unintentionally creating personal liability for themselves.
- Carry out an equality impact assessment before any change to facilities.
If you are changing facilities or policies, document the assessment you have done, the options you considered, and why you chose the option you chose. This is the contemporaneous evidence you will want if a decision is ever challenged.
If you are also a service provider
If you are a service provider, the Code does apply to your customer-facing operations directly. Practical priorities for service providers:
- Review any customer-facing single sex provision: changing rooms, treatment rooms, support groups, residential or communal accommodation, sporting facilities.
- Record your reasoning. The Code says it is good practice to document why you have decided to provide, or not to provide, a separate or single sex service, with supporting evidence.
- Front line staff need a clear, consistent script for any difficult conversations they may have, and have a clear line of referral for concerns raised.
How Thrive Law can help
We are advising employers across the UK on facilities policy reviews, equality impact assessments, manager training, and individual employee situations relating to the new Code and the workplace position.
If you would like to talk through how this affects your organisation, email enquiries@thrivelaw.co.uk or call 0113 869 8101.
References
Draft Code of Practice (EHRC, May 2026): https://www.gov.uk/government/publications/equality-act-2010-draft-code-of-practice-for-services-public-functions-and-associations-2026
For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16: https://www.supremecourt.uk/cases/uksc-2024-0042.html
This blog is for information only and does not constitute legal advice. It reflects the law as at 22 May 2026.
