The single sex spaces conversation has dominated press coverage of the EHRC’s updated Code of Practice, and for understandable reasons. But it is not the only material the Commission has updated, and some of the less covered changes are equally important for HR and managers.
The Equality Impact Assessment published alongside the Code is the best authority for what has actually changed.
- Menopause is properly addressed for the first time
The Equality Impact Assessment confirms that examples have been added to set out the position on menopause, and that detail has been added in the disability appendix on the definition of disability in relation to menopause.
The Code includes an example at paragraph 2.25 of a woman experiencing hot flushes, disturbed sleep, fatigue, anxiety, and memory and concentration problems, where her symptoms have lasted or are likely to last for at least 12 months. The Code confirms her condition may meet the definition of disability in the Act.
The disability appendix, at paragraph 25, goes further. It states that menopause symptoms can be serious and can have a substantial and long term adverse effect on a woman’s ability to carry out normal day to day activities. Where that is the case, menopause symptoms can fall under the definition of disability. Where they can be easily managed without a substantial impact, they will not. This is not new; but it is clarity and reaffirming what lawyers have been advising for years.
The appendix also makes a point that has not always been clear in earlier guidance: menopause related claims may be brought on the grounds of disability, sex and / or age discrimination and harassment. That confirms that one condition results in three different routes to a tribunal.
Why this matters for employers and service providers: it confirms that reasonable adjustments, manager training, and how the organisation responds to dismissive comments should all be high priority for employers.
- Conduct relating to breastfeeding can amount to unlawful harassment
The Equality Impact Assessment describes this as a “helpful and new clarification.” The updated Code makes clear that conduct relating to breastfeeding may constitute unlawful harassment on the grounds of sex, not only less favourable treatment.
In practical terms, that means asking a breastfeeding woman to move, stop, or cover up in a service setting, in circumstances where men in the same setting would not be asked to change behaviour, can engage both the direct discrimination provisions and the harassment provisions. The Code also confirms that trans men who become pregnant are included in these protections, because the pregnancy and maternity provisions apply on the basis of biological sex.
For employers running customer facing operations, this should already be clear in client-facing staff training.
- Single sex sport,substantially reworked
The Equality Impact Assessment is explicit that the sport section has been updated. The Code now sets out more clearly that sex based rules and arrangements relating to participation in gender affected activities should be applied on the basis of biological sex. There is also more detailed guidance on the factors to take into account when developing policies on event participation based on sex and gender reassignment, and on the distinction between the sex exception and the gender reassignment exception.
For employers and HR, this is mostly relevant when you run staff sporting events, charity matches, intra firm tournaments or hospitality entertainment. The framework you use for those activities should align with the legal guidance.
- Asking about a person’s sex
This is new material; the Equality Impact Assessment records that information and guidance has been added at paragraphs 13.160 to 13.178 on asking about sex and on asking people about their protected characteristics and their sex recorded at birth.
The starting point is that asking about sex is sensitive and may engage privacy rights under Article 8 of the European Convention on Human Rights. It is likely to constitute special category data under data protection law.
The Code sets out a structured approach. Where there is a legitimate aim (such as operating a lawful single sex service), the means of asking should usually be communicating the basis of the service clearly, so users can volunteer the information if it’s relevant. Where there is clear evidence of an issue, more direct enquiry may be proportionate, but only if implemented in a way that respects dignity and privacy.
The takeaway: do not let well meaning staff start asking customers, colleagues, members or attendees about their sex without a documented framework in place.
- Trans men who become pregnant are within the pregnancy and maternity protections
A new paragraph 4.55 clarifies that trans men who become pregnant are included in the protections against pregnancy and maternity discrimination. The provisions apply on the basis of biological sex, so the protection follows the biology, not the legal sex.
This is a small clarification with significant consequences for some employers. Maternity leave entitlement, pregnancy related dismissal protection, the protection against pregnancy related less favourable treatment, and the harassment route via sex based harassment all engage for a pregnant trans man.
For HR teams, the practical point is that pregnancy related policies should be drafted without assuming the employee will be a woman in the legal sense. The protection applies on the basis of biology.
- Neurodivergent conditions are explicitly within the definition of mental impairment
The Equality Impact Assessment records two important developments in this area. First, paragraph 5 of the disability appendix has been clarified to make clear that the definition of mental impairment includes autism or other similar conditions. Second, the reasonable adjustments material has been substantially expanded.
The clarification on neurodivergence is one of the most useful additions in the Code. The previous position was that neurodivergent conditions could meet the definition of disability where the statutory test was satisfied, but the Code was not explicit in giving examples of this.
The expanded reasonable adjustments material covers:
- anticipating the duty rather than waiting for a request,
- the relevant comparison when determining substantial disadvantage,
- what a service provider needs to know about an individual’s impairment to be liable for discrimination arising from disability,
- when offering a service virtually rather than in person is likely to be reasonable, and
- how the burden of proof shifts once an individual has shown substantial disadvantage.
The disability appendix has also been expanded with new material on long covid, progressive conditions, coping strategies, and fluctuating conditions.
What to do with all of this
You do not need to do everything at once. A practical sequence:
- Add menopause to your reasonable adjustments awareness training and review your menopause policy if you have one. If you do not have one, this is a sensible moment to write one (or reach out to us for help!)
- Check the basics on breastfeeding and pregnancy in customer facing settings. Front line staff training is the priority. You should also consider your pregnancy related policies to make it clear it applies on the basis of biological sex, not assumed gender.
- If you run sporting or competitive activities, check the framework you use.
- If you ever ask service users or attendees about their sex, write down the basis on which you do so, and make sure your staff are working from the basis.
- Brief any team working on reasonable adjustments cases on the updated disability appendix and on the explicit position on neurodivergent conditions.
Want to know more?
As part of our Thrive Law “Work In Progress” Summit in October, we will be discussing menopause support specifically, alongside sessions on neurodiversity, reasonable adjustments and the other reforms under the Employment Rights Act 2025.
In particular, our legal panel will be discussing how the equality conversation has moved on, and whether the Code reflects that.
How Thrive Law can help
We work with employers across the UK on menopause and pregnancy policies, manager training, neurodiversity and reasonable adjustments support, dignity at work policy reviews, and tailored training for HR teams and managers on the updated Code.
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
Equality Impact Assessment: https://www.gov.uk/government/publications/equality-act-2010-draft-code-of-practice-for-services-public-functions-and-associations-2026/equality-impact-assessment
This blog is for information only and does not constitute legal advice. It reflects the law as at 23 May 2026.
