EHRC Consultation Response
Below is my response to the consultation on the updated Code of Practice for Services, Public Functions and Associations
Updated legal definition of sex
We have updated the legal definition of sex throughout the code of practice. Our previous definition explained that:
‘Legal sex is the sex that was recorded at your birth or the sex you have acquired by obtaining a Gender Recognition Certificate (GRC).’
Following the UK Supreme Court ruling in For Women Scotland, this definition is no longer accurate, because a GRC does not change your legal sex for the purposes of the Equality Act 2010. We have therefore updated this definition throughout the code to be:
'Legal sex is the sex that was recorded at your birth.'
The explanation of the updated legal definition of sex is clear:
Disagree
Is there anything you would change to make this update clearer?
The Supreme Court did not use the phrase “legal sex” nor did it define it as the sex that was recorded at birth. This guidance should follow the Supreme Court and explain what is meant by the words used by the Court where they are ambiguous, but it should not substitute in new language for definitions.
At para. 7 of the judgement, the Supreme Court noted “We also use the expression “biological sex” which is used widely, including in the judgments of the Court of Session, to describe the sex of a person at birth, and we use the expression “certificated sex” to describe the sex attained by the acquisition of a GRC.” This guidance should replicate the wording of the Supreme Court.
Sex should be defined as “biological sex, that is the sex of a person at birth”. This is used within the Code already, so there is no reason why the definition of “legal sex” is inconsistent with this. It is possible to distinguish birth sex, legal sex, and certificated sex where birth sex means biological sex, legal sex means the sex recorded at birth, and certificated sex means the sex acquired by obtaining a GRC, which will be different from both biological sex and the sex recorded at birth. This seems unnecessary in my view. My advice is to stick to biological sex and certificated sex, as the Supreme Court did.
If the Commission feels that further guidance is needed to explain what biological sex is in law, the leading case is Bellinger v Bellinger [2003] UKHL 21 at paras. 5-11. In Bellinger, the House of Lords distinguished between transgender/transsexual people and those born with “intersex” conditions or DSDs. The court identified several indicia of biological sex relevant for determining legal status which included both physiological and other indicia. Where physiological indica (chromosomes, gonads, and genitals) were congruent, that is determinative of an individuals biological sex, including for those who identify as trans. Where physiological indicia are incongruent, the law takes a more expansive view. This is unlikely to be relevant for the provision of goods and services.
What is important here is that for those with DSDs, there is a process to change what has been recorded at birth because of a genuine error in recording. Defining sex as the sex recorded at birth is misleading because it implies that what matters for the Equality Act is the record rather than the underlying fact that has been recorded and, where there has been an error, can be amended. This Code should stick to the definition provided by the Supreme Court which looks to the underlying fact of biological sex which is recorded and which does not change even if the initial record was erroneous.
Gender Recognition Certificates
The new code states:
2.1.6 The Supreme Court in For Women Scotland Ltd v The Scottish Ministers (For Women Scotland) [2025] UKSC 16 has ruled that a GRC does not change a person’s legal sex for the purposes of the Equality Act 2010.
2.1.7 This means that, in relation to the Act, a person’s sex remains their biological sex, whether they have a GRC or not. This is also referred to as ‘sex at birth’ or ‘birth sex’ in this code. For example, a trans man with a GRC is a woman and a trans woman with a GRC is a man, for the purposes of the Act.
2.1.8 A trans person will be protected from discrimination because of gender reassignment, whether they have a GRC or not.
2.1.9 A trans person will also be protected from sex discrimination whether they have a GRC or not. They will be protected from sex discrimination that is based on their birth sex. They will also be protected from sex discrimination related to their acquired gender where they suffer:
direct discrimination by association or where this is because of their perceived sex in their acquired gender (read about discrimination by perception in the changes to chapter 4)
indirect discrimination by association (s.19A) of the Act
harassment related to sex (s.26) (read about harassment related to sex in the changes to chapter 8)
The explanation of the legal rights and responsibilities set out in the new content on Gender Recognition Certificates is clear:
Agree
Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?
This section gets the law right, but the wording could be clearer. It may be clearer to say “all those born female are women for the purposes of the Act, including trans men. All those born male are men for the purposes of the Act, including trans women. A GRC does not change a person’s sex for the purposes of the Act.”
Asking about sex at birth
Asking about birth sex
2.2.1 It is important to be aware that some people, including some trans or gender non-conforming people, may find it distressing to be asked about their birth sex. Therefore, any necessary request about birth sex should be made sensitively, taking this into account.
2.2.2 Where obtaining information on birth sex is not necessary and proportionate, asking a trans person about their birth sex may risk unjustifiably interfering with their human rights under Article 8 of the European Convention on Human Rights (ECHR), which is respect for private and family life. Therefore, care should be taken, particularly by public authorities, that this is only done where necessary and justified.
2.2.3 Requests about birth sex are more likely to be justified where it is necessary and proportionate for a service provider, those exercising public functions or an association to know an individual’s birth sex to be able to discharge their legal obligations under the Equality Act 2010 (the Act). Any request that is made should be done in a sensitive way which does not cause discrimination or harassment.
2.2.4 Discrimination or harassment could occur if, for example, individuals are asked about their birth sex in a way which may require them to disclose this information in public, or if the language or manner of a request is rude, combative or offensive.
2.2.5 Indirect discrimination could occur if a policy on how or when to ask for such information places some protected characteristic groups at a particular disadvantage and is not justified. However, where practical, it is likely to be best to adopt the same approach with everyone, rather than only asking some people for information, because this approach is less likely to be discriminatory against any one group.
2.2.6 If it is necessary to ask a person’s birth sex, consideration should be given to whether it is reasonable and necessary to ask for evidence of birth sex. In many cases, it will be sufficient to simply ask an individual to confirm their birth sex. A service provider may make a rule that if someone is asked their birth sex and chooses to answer objectively falsely it will be grounds for exclusion from the service.
Example
2.2.7 A trans woman goes to the office of a local support group and makes enquiries with the receptionist about the group counselling sessions they offer. Based on the needs of its service users, the group provides different sessions that are single-sex or mixed-sex. The receptionist reasonably thinks that the trans woman is a biological male and, as there are some other people waiting in the office, asks her to come into a side room to get more details about the support she is looking for. When they are in private, the receptionist explains the different group sessions that are offered and asks the trans woman what her birth sex is. When she confirms her birth sex, the receptionist provides her with the details of the mixed-sex groups she could attend.
2.2.8 If there is genuine concern about the accuracy of the response to a question about birth sex, then a birth certificate could be requested. For the vast majority of individuals, this will be an accurate statement of their birth sex. However, it should be noted that a birth certificate may not be a definitive indication of birth sex. If a person has a Gender Recognition Certificate (GRC) they may have obtained an amended birth certificate in their acquired gender. In the unlikely event that it is decided that further enquiries are needed, such as confirmation as to whether a person has a GRC, then any additional requests should be made in a proportionate way which is discreet and sensitive.
2.2.9 It is important to be aware of legal provisions protecting privacy in the context of making such enquiries. If, in the course of these enquiries or otherwise, a service provider, those exercising public functions or an association acquires information that someone has a GRC or has applied for a GRC, onward disclosure of either that information or their biological sex without consent may be a criminal offence in some circumstances (read section 22 of the Gender Recognition Act 2004).
2.2.10 Read also the Data Protection Act 2018 and UK General Data Protection Regulations, which deal with processing personal data.
The explanation of the legal rights and responsibilities set out in the new content on asking about sex at birth is clear.
Disagree.
Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?
This part of the guidance is running together two separate issues: whether obtaining information about a person’s birth sex is necessary and whether the means used to obtain that information is proportionate.
It should be made clear that if a policy is operating based on the single-sex exceptions in Schedule 3, then the rules about natal or biological sex can be clearly communicated to service users without the need to collect or process information about a person’s birth sex. Collecting and processing information about a person’s birth sex will only be necessary if the service provider has decided that this service is one which requires heightened screening before access to the service is granted (for example a rape crisis centre) or where a dispute arises in the context of a service which does not have heightened screening before access.
For example, in the context of a single-sex communal changing room, information about birth sex will not ordinarily be collected. Rather, the single-sex nature of the service will be communicated to service user’s and the expectation will be that this will be complied with. In that context, a dispute may arise if a biological man uses the women’s changing room. Here, too however, service can be refused without any need to request information about birth sex, if that information is already readily observable. In this context, it is only where the service provider is unsure about the biological sex of a service user that information about birth sex may be requested.
Similarly, in the context of a rape crisis centre where there may be more heightened screening processes, a service provider may need to ask about an individuals biological sex and should do that in a proportionate manner. A good example of this, would be the requirement of service user’s to fill out a form upon entry to the service which includes a declaration to the effect that the user understands that this is a female-only service that is only offered to those who were born female. Again, if there is a dispute over the biological sex of a servicer user, further information may be requested.
It is unclear why a birth certificate would be requested. Under our current law, birth certificates are not a reliable record of biological sex. They cannot be used to verify biological sex. Requesting to see a service user’s birth certificate will be obviously disproportionate because there is no rational connection between the means chosen to verify biological sex and the aim of verifying biological sex. Birth certificates can’t verify biological sex.
This Code should state that, where biological sex is disputed, a service provider should make the best assessment they can, with the information available. Service providers should also be warned that providing a single-sex service which is in practice a mixed-sex service because the rules are never enforced, can lead to liability for any discrimination or harassment experiences by service users expecting a single-sex service.
Defining Sex at Birth
What the Act says about sex
2.3.1 Sex is a protected characteristic and refers to a male or a female of any age. In relation to a group of people it refers to either men and / or boys, or women and / or girls (s.11(a) and (b) and s.212(1)).
2.3.2 The Supreme Court in For Women Scotland ruled that ‘sex’, ‘woman’ and ‘man’ in the Act mean biological sex, biological woman and biological man. This is the sex of a person at birth.
2.3.3 A Gender Recognition Certificate (GRC) does not change a person’s sex for the purposes of the Act. Read paragraphs 2.1.1 to 2.1.9 for more information on GRCs. Read paragraphs 2.2.1 to 2.2.10 for more information about when and how it may be appropriate to request information or evidence of birth sex.
2.3.4 A comparator for the purposes of showing sex discrimination will be a person of the opposite sex. Sex does not include gender reassignment (read paragraphs 2.1.6 to 2.1.9) or sexual orientation (read paragraphs 2.4.1 to 2.4.6).
2.3.5 There are specific provisions which apply where the treatment of a woman is because of her pregnancy and maternity, or because she is breastfeeding (s.13(6)(a) and s.13(7)).
The explanation of the legal rights and responsibilities set out in the new content on defining sex at birth is clear
Strongly agree.
Updated description of the protected characteristic of sexual orientation
What the Equality Act 2010 (the Act) says about sexual orientation
2.4.1 Sexual orientation is a protected characteristic (s.12(1)). It means a person’s sexual orientation towards:
persons of the same sex (the person is a lesbian woman or a gay man)
persons of the opposite sex (the person is heterosexual)
persons of either sex (the person is bisexual)
2.4.2 Sexual orientation relates to how people feel as well as their actions.
2.4.3 Sexual orientation discrimination includes discrimination because someone is of a particular sexual orientation, and it also covers discrimination connected with manifestations of that sexual orientation. These may include someone’s appearance, the places they visit or the people they associate with.
2.4.5 When the Act refers to the protected characteristic of sexual orientation (s.12(2)), it means the following:
a reference to a person who has a particular protected characteristic is a reference to a person who is of a particular sexual orientation
a reference to people who share a protected characteristic is a reference to people who are of the same sexual orientation
2.4.6 Gender reassignment is a separate protected characteristic and unrelated to sexual orientation, despite often being grouped together (for example under the acronym ‘LGBTQ+ people').
The explanation of the legal rights and responsibilities set out in the updated description of the protected characteristic of sexual orientation is clear
Agree.
Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?
There should be some mention of discrimination by perception and association here - if manifestation is included, so should these other forms of discrimination. It should also be clarified that being able to claim under discrimination by perception does not mean that one has the protected characteristic in question. A service provided to lesbians, for example, can be confined to biological women sexually oriented to other biological women, even if some trans women could bring a successful claim for sexual orientation discrimination if they are perceived to be lesbian.
New example on sex discrimination by perception
Discrimination by perception
4.1.1 It is direct discrimination if service providers, those exercising public functions or associations treat an individual less favourably because the service providers, those exercising public functions or associations perceive that the individual has a protected characteristic even if they do not. However, this does not apply to the protected characteristic of pregnancy and maternity.
Example
4.1.2 People with certain Irish surnames are subjected to more stringent checks by a holiday company and then excluded from making holiday bookings because they are assumed to be Irish Travellers. This is less favourable treatment because of race.
Example
4.1.3 A trans woman is a member of an association and applies to become treasurer, but her application is rejected. She is told by the Chairman that this is because they want a man to take the role on as they do not think a woman could do the job as well. This is less favourable treatment because of sex. The trans woman would have a claim for direct discrimination because of her perceived sex as a woman. The fact that she is not a woman under the Equality Act 2010 would not prevent her bringing this claim of sex discrimination.
The explanation of the legal rights and responsibilities set out in the new example on sex discrimination by perception is clear
Agree.
Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?
This example is correct in law but could be clearer. Not making it clear that a trans woman is a biological man can lead to confusion for service providers who are not as familiar with the social context of transgender politics or who do not speak English as a first language. Somewhere in this example it should be made clear not just that the trans woman is not a woman under the Equality Act, but that a trans woman is a man for the purposes of the Equality Act.
Removed reference to superseded caselaw
We removed content that explained that, for trans men holding a Gender Recognition Certificate (GRC), the protection from pregnancy and maternity discrimination under the Equality Act 2010 (the Act) arose from case law. This case law set out that trans men were still protected irrespective of them having a GRC that stated that their legal sex was male. Following the For Women Scotland ruling, their legal sex is now female for the purposes of the Act, and they therefore have protection on that basis.
Updated content
Discrimination because of pregnancy and maternity
4.2.1 The Act provides protection against discrimination because of pregnancy and maternity in the provision of services, the exercise of public functions and in associations (s.17).
4.2.2 When explaining these provisions, we use the same language as the Act, which refers to discrimination against women on the grounds of pregnancy and maternity. The pregnancy and maternity provisions in the Act apply on the basis of biological sex and so trans men are included in the protections against discrimination provided by these provisions.
The explanation of the legal rights and responsibilities set out in Change 4.2 is clear
Strongly agree.
New example on sex discrimination - same disadvantage
Indirect discrimination: same disadvantage
5.1.1 Indirect discrimination may also occur when an individual without the relevant protected characteristic experiences disadvantage alongside persons with the relevant protected characteristic. Provided that a discriminatory provision, criterion or practice puts, or would put, them at substantively the same disadvantage as people who share the relevant protected characteristic, such an individual may bring a claim for ‘same disadvantage’ indirect discrimination (s.19A). Objective justification applies to same disadvantage indirect discrimination.
5.1.2 Although this type of indirect discrimination is sometimes referred to as ‘associative indirect discrimination’, it is not necessary for there to be any relationship or association between the group with the relevant protected characteristic and the individual who does not share it. Rather, the individual without the relevant protected characteristic must be able to show that the disadvantage they experience is essentially the same as that experienced by the group sharing the protected characteristic and it arises from the same provision, criteria or practice.
Example
5.1.3 A local council holds its public consultation meetings on a weekday evening in an area regarded as unsafe for women. It discovers that fewer women than men attend. A woman complains that this is because many women cannot come because of safety concerns, including herself. This kind of disadvantage is more likely to apply to women as a group and will amount to indirect discrimination against women, unless the council can justify its policy.
People who do not share the same protected characteristic but who may also feel unsafe for similar reasons could experience disadvantage that is essentially the same. For example, a trans woman who feels unsafe in the area where the consultation meetings are held because they present as a woman would also have a claim for indirect discrimination, if the council is unable to justify its policy.
The explanation of the legal rights and responsibilities set out in the new example on sex discrimination - same disadvantage is clear
Agree.
Updated example on harassment related to sex
8.1.b. An individual may be wrongly perceived as having a particular protected characteristic.
Example
A trans woman using the gym equipment in her local leisure centre is regularly subjected to comments from male staff members such as ‘watch what you say in front of her, it’s her time of the month again’. As with the example at 8.1.3, this could amount to harassment. However, in this example, the harassment would be related to the trans woman’s perceived sex.
The explanation of the legal rights and responsibilities set out in the updated example on harassment related to sex is clear
Agree.
New example on women-only associations
Associations may restrict membership to persons who share a protected characteristic
12.1.1 The Equality Act 2010 (the Act) permits associations, other than political parties, to restrict their membership to persons who share a protected characteristic (Sch. 16). The only exception is that membership can never be restricted based on colour (Sch. 16 paragraph 1(4)).
Example
12.1.3 A trans woman applies to join a women-only association and her application is refused. This would be lawful because membership is based on sex and restricted to women and, under the Act, she does not share that protected characteristic (read about this in the changes to chapter 2 (paragraphs 2.3.1 to 2.3.5).
The explanation of the legal rights and responsibilities set out in the new example on women-only associations is clear
Agree.
Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?
This example is correct in law but could be clearer. Not making it clear that a trans woman is a biological man can lead to confusion for duty-bearers who are not as familiar with the social context of transgender politics or who do not speak English as a first language. Somewhere in this example it should be made clear not just that the trans woman is not a woman under the Equality Act, but that a trans woman is a man for the purposes of the Equality Act.
Updated section on competitive sport
Competitive sport
13.1.1 The Act includes four types of exceptions that may apply in relation to the participation of a competitor in a sport, game or other activity of a competitive nature (s.195). These relate to sex, gender reassignment, nationality or birthplace, and age.
Competitive sport – sex
13.1.2 It is not a breach of the Act for a person to organise single-sex or separate-sex events for male and female competitors in a sport, game or other activity of a competitive nature in specific circumstances (s.195(1) and (3)). These circumstances are where an average person of one sex would be at a disadvantage as a competitor against an average person of the other sex due to their physical strength, stamina or physique (referred to in the Act as a ‘gender-affected activity’). Where there is no disadvantage due to these factors, organising single-sex or separate-sex events may be unlawful sex discrimination.
Example
13.1.3 The organisers of a 5-a-side football event decide that it is necessary to hold separate competitions for men and women. This is likely to be permitted under the Act. Physical strength, stamina and physique are all significant factors in 5-a-side football match. An average man has an advantage compared to an average woman because men are on average taller and stronger and have more overall muscle mass than women.
13.1.4 This exception also applies to children’s sport (s.195(4)). However, organisers must consider whether there are significant differences in physical strength, stamina or physique at the age and stage of development of the children competing in the activity.
Example
13.1.5 A primary school only has a boys’ under-7 football team as there are not enough girls for a full team. A girl requests to join the team. It may be unlawful to decline this request unless the school can demonstrate that there are differences in physical strength, stamina or physique between boys and girls under 7 years old that would disadvantage girls taking part in football. Examples of disadvantage could be unfair competition or risks to health and safety.
Competitive sport – gender reassignment
13.1.6 In the context of a gender-affected activity (read paragraph 13.1.2), the Act allows trans people to be excluded from an event or treated differently, which would otherwise constitute unlawful gender reassignment discrimination, when necessary for reasons of safety or fair competition. If it is not necessary for these reasons, it is likely to be unlawful to exclude trans people.
13.1.7 Consequently, if a person is organising single-sex or separate-sex events for men and women in a gender-affected activity, they should consider their approach to trans competitors’ access to the service (s.19 and s.195(2)).
13.1.8 Direct gender reassignment discrimination can occur if a policy or decision to restrict participation of trans people is made on the grounds of gender reassignment.
13.1.9 This would be the case, for example, if a trans man, who is a woman under the Act, is excluded from a women’s event because of his gender reassignment characteristic. Read our changes to chapter 2 for more information on the meaning of gender reassignment.
13.1.10 Indirect gender reassignment discrimination can occur if a provision, criterion or practice puts trans people (including the individual trans person concerned) at a particular disadvantage compared to people who are not trans and it cannot be justified.
13.1.11 However, in the context of a gender-affected activity, the Act provides an exception to a claim of gender reassignment discrimination if a person restricts participation of a trans person in a gender-affected activity and can show it is necessary to do so for reasons of fair competition or the safety of competitors (s.195(2)).
13.1.12 This means that organisers can prevent trans people from participating in a gender-affected sporting activity if it is necessary to do so because their participation would create a competitive advantage or disadvantage, or would potentially endanger their own safety or that of other participants.
Example
13.1.13 A boxing gym runs a boxing competition for men. A trans man wishes to compete. The gym declines his request because they are concerned about the safety of trans men taking part in the full-contact sparring with men due to physiological differences. This is likely to be lawful if the gym can demonstrate that that there would be a genuine health and safety risk if trans men were allowed to join the competition.
13.1.14 In some circumstances, limiting, modifying or excluding the participation of trans people for the reasons of fair competition or safety may be necessary to avoid discrimination against other competitors. Section 195(1) provides organisers of separate sporting events for men and women with an exception for sex discrimination when providing separate men’s and women's events. The law on the interpretation of this provision is not settled and there is therefore uncertainty as to how this provision applies.
13.1.15 Section 195(1) is likely to only apply where a person has decided to organise the gender-affected activity as a single-sex or separate-sex event. A claim of direct or indirect sex discrimination cannot be brought about the participation of a person in an event which has been organised as a single-sex or separate-sex event.
13.1.16 Where an organiser chooses to offer a mixed-sex gender-affected activity, then this activity is not protected by the exception in section 195(1) and participants may bring claims of direct and indirect sex discrimination about it.
Example
13.1.17 An athletics club chooses to organise an athletics event that includes women and trans women. The trans women who participate are significantly faster and have a physical advantage. A woman may be able to bring a claim for indirect sex discrimination due to the provider’s decision not to limit or modify the participation of trans women placing her at a particular disadvantage.
13.1.18 Given the physiological differences between men and women, it will often be necessary for organisations to develop general policies to guide and inform their decision making in this area. Policies should be supported by a clear rationale and evidence base, and will often wish to draw upon guidance from sporting authorities. Relevant factors may include:
whether an activity is primarily competitive, or competitive but with a significant social and recreational purpose, and whether it is a mass participation event
whether there are safety risk factors such as those arising from physical contact between men and women
the extent to which there are competitive advantages arising from sex-based physiological factors such as physical strength, stamina or physique
whether such competitive advantage can be sufficiently reduced through medical intervention, such as drugs to reduce levels of testosterone, to make the competition fair
The explanation of the legal rights and responsibilities set out in the updated section on competitive sport are clear
Agree.
Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?
I should note that this part of the Code is more clear than the parts mentioning trans women because it provides the necessary context to communicate effectively: “This would be the case, for example, if a trans man, who is a woman under the Act”. By making it clear that a trans man is a woman under the Act, this example clearly communicates the law. This should be the standard across the Code, including with reference to trans women, not just for examples involving trans men.
Updated section on separate and single-sex services for men and women
Services for particular groups
13.2.1 The Equality Act 2010 (the Act) contains specific exceptions (discussed in this section) which allow service providers and, in certain cases, those exercising public functions (s.31(3)), to provide services:
separately and / or differently for women and men
exclusively for women
exclusively for men
to people of a particular age group (in certain circumstances)
13.2.2 If a service is generally provided only for persons who share a protected characteristic, a person who normally provides that service can (Sch 3 paragraph 30):
insist on providing it in a way they normally provide it
refuse to provide the service to people who do not share that protected characteristic, if they reasonably think it is impracticable to provide it
Separate services for women and men
13.2.3 The Act (Sch 3 paragraph 26(1)) does not prohibit sex discrimination where a service provider (including a person providing a service in the exercise of public functions (s.31(3)) offers separate services for men and women in specific circumstances. It is lawful to provide separate-sex services if:
a joint service for women and men would be less effective, and
providing the service separately to women and men is a proportionate means of achieving a legitimate aim
13.2.4 If these conditions do not apply, the provision of separate-sex services is likely to be unlawful sex discrimination.
13.2.5 The Act (Sch 3 paragraph 26(2)) also does not prohibit sex discrimination where a service provider (including a person providing a service in the exercise of public functions) provides separate services for each sex in a different way, if:
a joint service for persons of both sexes would be less effective, or
the extent to which the service is required by one sex makes it not reasonably practicable to provide the service other than separately and differently for each sex, and
the limited provision of the service is a proportionate means of achieving a legitimate aim
Example
13.2.6 A domestic violence support unit is set up by a local authority for women and men separately as they are aware that service users feel safer and more comfortable attending a single-sex group. There is less demand for the men’s group, which meets less frequently.
13.2.7 The Act (Sch 3 paragraph 26(3)) also does not prohibit sex discrimination where a service provider (including a person providing a service in the exercise of public functions) does anything in relation to the provision of separate services, or services provided differently for women and men, for the reasons set out in paragraph 13.2.5.
Example
13.2.8 A local authority allocates funding for a primary care trust to contract with a voluntary sector organisation to provide counselling for women who have had a mastectomy.
13.2.9 Read paragraphs 13.3.1 to 13.3.20 for the considerations relevant to whether a separate-sex service, or anything done in relation to it, is a proportionate means of achieving a legitimate aim.
Single-sex services
13.2.10 The Act (Sch 3 paragraph 27) does not prohibit sex discrimination where a service provider (including a person providing a service in the exercise of public functions) provides a service exclusively to one sex, if doing so is a proportionate means of achieving a legitimate aim and at least one of the conditions in paragraphs 13.99 to 13.109 applies.
13.2.11 Condition 1: Only people of that sex need the service.
13.2.12 Condition 2: A service that is provided jointly for both sexes is not sufficiently effective without providing an additional service exclusively for one sex.
Example
13.2.13 A gym provides weightlifting classes to all its customers, but few women join the class, so it also provides an additional single-sex weightlifting class for women to encourage women to use the service.
13.2.14 Condition 3: A service provided for men and women jointly would not be as effective, and the demand for the services makes it not reasonably practicable to provide separate services for each sex.
Example
13.2.15 A support unit for women who have experienced domestic or sexual violence can be established, even if there is no men's unit established because there is insufficient demand to make it reasonably practical to provide a separate service for men.
13.2.16 Condition 4: The service is provided at a hospital or other place where users need special care, supervision or attention.
Example
13.2.17 A hospital chooses to provide a single-sex hospital ward for women patients to protect their safety, privacy and dignity. The hospital supports this decision by noting that the ward in question does not fit its criteria for the small number of circumstances where mixed-sex accommodation may be acceptable.
13.2.18 Condition 5: The service is for, or is likely to be used by, more than one person at the same time and a woman might reasonably object to the presence of a man, or vice versa.
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 when she is using the service.
Example
13.2.19 Women-only communal changing rooms in a sports facility.
13.2.20 Condition 6: The service is likely to involve physical contact between the service user and another person and that other person might reasonably object if the service user is of the opposite sex.
In this condition, limited and non-intimate physical contact is unlikely to justify single-sex provision. For instance, the fact that in first aid training there may be some physical contact between participants in the classes is unlikely to warrant the provision of single-sex sessions.
Example
13.2.21 A female carer only provides intimate personal care to female clients as she is uncomfortable providing this type of care to men in a domestic environment.
13.2.22 Where a service provider (including a person providing a service in the exercise of public functions) does anything in relation to the provision of single-sex services, this will be lawful provided that one of conditions 1 to 6 is met, and that providing the service on a single-sex basis is a proportionate means of achieving a legitimate aim.
13.2.23 Read paragraphs 13.3.1 to 13.3.20 for the considerations relevant to whether a single-sex service, or anything done in relation to it, is a proportionate means of achieving a legitimate aim.
The explanation of the legal rights and responsibilities set out in the updated section on separate and single-sex services for men and women is clear
Strongly agree.
New section on justification for separate and single-sex services
13.3.1 When providing a separate or single-sex service, a service provider (including a person providing a service in the exercise of public functions) must be able to demonstrate that doing so is a proportionate means of achieving a legitimate aim.
13.3.2 An example of a legitimate aim for providing a separate or single-sex service could be ensuring the safety of women or the privacy and dignity of women and / or men. The service provider (including a person providing a service in the exercise of public functions) must show that providing the service only to one sex or separately to both sexes is a proportionate way to achieve the aim.
13.3.3 When considering whether providing a separate or single-sex service is proportionate, the service provider (including a person providing a service in the exercise of public functions) should consider all potential service users and whether there is a fair balance between:
the benefits of offering the service as a separate or single-sex service, and
the needs of those who are accessing it, and
the impact on those who are excluded from accessing it
13.3.4 When considering the benefits of offering a separate or single-sex service, the service provider (including a person providing a service in the exercise of public functions) should think about whether women’s safety, privacy and / or dignity would be at risk in the service if it was shared with men.Taking the example of offering a single-sex service for women, the service provider should consider factors such as:
whether women are likely to be in a state of undress
whether there will be limited ability for women to leave or to choose an alternative service
whether the service is provided a result of, or connected with, male violence against women
whether the physical differences between men and women are relevant to the experience of the service and put women at a particular disadvantage
Where factors like these are present, the benefits of offering a separate or single-sex service will be likely to outweigh other considerations in the balancing exercise.
13.3.5 The needs of potential service users include the specific needs of people with different protected characteristics, such as older people, disabled people and those who observe particular religious practices. For example, Muslim people may have a particular need for separate-sex services to observe the requirements of their faith.
Example
13.3.6 A swimming class provider runs classes at a swimming centre that caters to the local community, including Muslim people. The swimming class provider operates a mix of services with some separate-sex classes, which are used predominantly by Muslim women and men, as well as mixed-sex classes which are open to everybody. The swimming class provider has considered the impact of the mix of its services across different protected characteristics and determined that its balanced mix of services is proportionate. The provision made is therefore likely to be lawful.
13.3.7 The impact on those who will be excluded from the service includes both the impact on people of the opposite biological sex generally and the particular impact on trans people of the opposite biological sex. In separate or single-sex services, a trans man will be excluded from the men-only service because his biological sex is female, and a trans woman will be excluded from the women-only service because her biological sex is male. Trans people are likely to be disadvantaged by this, by comparison to people who are not trans.
13.3.8 The service provider (or person providing a service in the exercise of public functions) should consider whether the disadvantage to trans people, and any other people who may be disadvantaged, outweighs the benefits of achieving the legitimate aim. They should also consider whether there is a less intrusive option than excluding trans people which would be proportionate (read 13.4.4 to 13.4.8).
13.3.9 Having carried out this balancing exercise, the service provider (including a person providing a service in the exercise of public functions) may conclude that arrangements or adaptions can be made to meet the needs of all service users, or that it remains proportionate to maintain only a separate or single-sex service.
13.3.10 In many cases, it will be proportionate to take a holistic approach to service provision by providing a mix of services which may include both separate or single-sex services and mixed-sex services. The mix of services in terms of the size of the separate or single-sex services and of the mixed-sex services should reflect the needs and relative numbers of service users with different needs.
Example
13.3.11 A service provider operates a shopping centre and decides to renovate the centre. It initially intends to only provide separate-sex toilets to improve the safety and comfort of users. This disadvantages trans people because it means that a trans person cannot access a toilet catered towards their acquired gender. The service provider therefore decides to also provide toilets in individual lockable rooms which can be used by people of either sex.
Example
13.3.12 A community group is opening a small advice centre. It decides to provide separate-sex toilets for women and men, and it repurposes the accessible toilet to be used as a mixed-sex toilet for anybody who does not wish to use the toilet for their biological sex. This is likely to be proportionate given the size and resources of the centre and takes into account the needs of all the potential service users.
Example
13.3.13 A local gym organises weightlifting induction classes designed to teach users of the gym proper techniques and safety measures. The classes are in high demand and are well attended. A small number of women request women-only classes, as they feel uncomfortable in the mixed-sex service. The gym amends its schedule to offer one induction class a fortnight to cater to this request, which it considers to be proportionate to the needs of service users and the relative demand. This is likely to be lawful because it has balanced the needs of different service users and provided a proportionate mix of services.
13.3.14 However, it may be that offering alternative arrangements is not reasonably possible for the service provider (including a person providing a service in the exercise of public functions) or that doing so would undermine the service that is being provided. This may be because of the type of service being provided, the needs of the service users, the physical constraints of any building, or because of the disproportionate financial costs associated with making those arrangements.
Example
13.3.15 In the example in paragraph 13.3.13, the women who have requested women-only classes also ask for single-sex changing rooms. The gym is in a small, shared studio space which provides mixed changing facilities with private cubicles for changing. The cubicles have floor to ceiling lockable doors and there have been no complaints about inappropriate conduct in the changing rooms. The service provider determines that providing single-sex changing rooms is impractical because of space constraints and the disproportionate cost. Since the existing changing rooms enable users to change in privacy, the current arrangement is likely to be proportionate and lawful.
Example
13.3.16 A women's centre provides a gym predominantly used by Jewish women who have religious objections to sharing a gym with men. The gym considers whether to open the gym to men on certain days, or to open the gym on a mixed-sex basis on certain days.
13.3.17 However, the centre decides to offer the gym only to women because the overwhelming demand for the service is from Jewish women and there are numerous other gyms in the area that cater to men and trans people. This service would exclude men and trans women, but it is likely to be proportionate and lawful.
13.3.18 It is good practice to record the reasons why a decision has been taken to provide or not to provide a separate or single-sex service, along with any supporting evidence.
13.3.19 If a service provider (or a person providing a service in the exercise of public functions) admits trans people to a service intended for the opposite biological sex, then it can no longer rely on the exceptions set out at paragraphs 13.2.3 to 13.2.22. This means that if a service is provided only to women and trans women or only to men and trans men, it is not a separate-sex or single-sex service under the Equality Act 2010. A service like this is very likely to amount to unlawful sex discrimination against the people of the opposite sex who are not allowed to use it. A service which is provided to women and trans women could also be unlawful sex discrimination or lead to unlawful harassment against women who use the service. Similar considerations would apply to a service provided for men and trans men.
13.3.20 Similarly, if a service provider (including a person providing a service in the exercise of public functions) decides only to provide a service on a mixed-sex basis, without any separate or single-sex option, this could be direct or indirect sex discrimination against women who use the service or lead to unlawful harassment against them. This is most likely in contexts like those referred to in paragraph 13.3.4.
The explanation of the legal rights and responsibilities set out in the new section on justification for separate and single-sex services the clear
Agree.
Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?
It should be made clear that if a service provider is providing showering, changing or sanitary facilities for the use of both the public and employees, it will be required by law to provide these facilities on a separate basis to men and women, unless they meet the exceptions in the Workplace (Health, Safety, and Welfare) Regulations 1992 which mostly relate to the provision of individualised facilities used by one person at a time. It should be made clear that meeting strict legal obligations such as the 1992 Regulations will always be a proportionate means of a achieving a legitimate aim.
New content on policies and exceptions for separate and single-sex services
13.4.1 It will usually be helpful and often necessary for service providers (including a person providing a service in the exercise of public functions) to have a policy setting out whether, and if so how, separate or single-sex services will be provided. When developing a policy, the service provider should consider how the policy should apply in different circumstances to ensure appropriate consideration of all affected interests and provide transparency for service users.
13.4.2 However, individual circumstances may, exceptionally, require a different approach to that set out in a policy. The law in this area is complex, and it is not certain that it is permissible to make exceptions to allow people of the opposite sex to use a separate or single-sex service. It is likely, however, that this will be permissible if doing so adds a necessary flexibility without undermining the aim of the service and / or contributes towards achieving the aim.
Example
13.4.3 A council swimming pool has separate men’s and women’s changing rooms. One of the aims of having separate-sex changing rooms is to safeguard women’s ability to access the facilities and use them safely. A woman is allowed to take her male child under the age of ten into the women’s changing room. This does not undermine the aim, because it is unlikely that young boys pose a threat to women’s safety. It also contributes towards achieving the aim, because fewer women would be able to use the swimming pool if they could not bring their children with them.
13.4.4 In most situations, when a potential service user wishes to access a single-sex service for the opposite biological sex, the service provider (including a person providing a service in the exercise of public functions) should consider whether it can accommodate the needs of the service user in a way which achieves a fair balance without compromising the single-sex nature of the service.
13.4.5 The service provider (including a person providing a service in the exercise of public functions) should consider whether it can offer a separate service to that individual and others in similar circumstances. If it is possible to do so, the service will remain a single or separate-sex service, with an additional separate service for those that share that individual’s circumstances.
13.4.6 For example, if a leisure centre offers women-only water aerobics sessions, and it is approached by a man who would like to access the service, the leisure centre should consider whether it could offer a water aerobics session that is also open to men at a different time or on a different day. If it is possible to do so, the service would remain a separate or single-sex service, but with an additional separate service that is also open to men.
13.4.7 Another example of a less intrusive measure would be adapting a service to enable the service to be used by people of both sexes. For example, it may be possible to offer toilets in individual lockable rooms to be used by both sexes.
13.4.8 It may be that offering alternative arrangements is not reasonably possible for the service provider (or person providing a service in the exercise of public functions) or that doing so would undermine the service that is being provided. This may be because of the type of service being provided, the needs of the service users, the physical constraints of any building, or because of the disproportionate financial costs associated with making those arrangements. The service provider may take account of the fact that if it admits the individual it may cease to be a separate or single-sex service (read paragraph 13.3.19).
The explanation of the legal rights and responsibilities set out in the new content on policies and exceptions for separate and single-sex services is clear
Agree.
Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?
The example at 13.4.3 should include reference to privacy as well as safety. It should be made clear that the reason why it is permissible to bring a male child under the age of 10 into the women's changing room does not extent to permit an adult biological man into to the women's changing room, regardless of gender identity. The Supreme Court was clear in For Women Scotland v The Scottish Ministers [2025] UKSC 16, at [221]: "if sex means biological sex, then provided it is proportionate, the female only nature of the service would engage paragraph 27 and would permit the exclusion of all males including males living in the female gender regardless of GRC status". This clearly means that that so long as the conditions for establishing a single-sex service are met, the female only nature of the service would permit exclusion of all males. That must mean that it will be permissible for a service provider to exclude even male children. The question of whether it is permissible to include males has been addressed in earlier part of the draft code where it is made clear that is will likely be unlawful sex discrimination to include some males into a female only service.
The issue here is, in my view, not one which even engages the Schedule 3 exceptions. The exclusion here is age discrimination, not sex or gender reassignment discrimination. This is a clear example of justified direct age discrimination against males over the age of 10. There is no need to rely on the Schedule 3 exceptions here.
I think its right to say that the law is currently unclear when it comes to whether young boys can be included within women-only single-sex services and I think that this guidance is right to indicate that it is likely that service providers will be allowed to lawfully permit boys into a women-only service, but I'm not sure this example is prudent. If the law is unclear, this shouldn't be in the guidance. If it is in the guidance, it needs to be clear that this shouldn't be read as undermining the clear statement from the Supreme Court at para 221 of FWS.
Separate or single-sex services – gender reassignment
13.5.1 If a service provider (including a person providing a service in the exercise of public functions) is considering providing a separate or single-sex service, they should consider their approach to trans people’s use of the service.
13.5.2 The impact of separate or single-sex services on trans people should be considered when the service provider is deciding whether it is justified to have a separate or single-sex service in the first place. Read paragraphs 13.3.8 to 13.3.20 for further information on this.
13.5.3 If a service provider (including a person providing a service in the exercise of public functions) decides to have a separate or single-sex service and allows trans people to use the service intended for the opposite biological sex, the service will no longer be a separate or single-sex service under the Equality Act 2010 (the Act). It is also very likely to amount to unlawful discrimination against others (read paragraph 13.3.19).
13.5.4 If it is justified to provide a separate or single-sex service, then it will not be unlawful discrimination because of gender reassignment to prevent, limit or modify trans people’s access to the service for their own biological sex, as long as doing so is a proportionate means of achieving a legitimate aim (Sch 3 paragraph 28).
13.5.5 For example, a trans man might be excluded from the women-only service if the service provider decides that, because he presents as a man, other service users could reasonably object to his presence, and it is a proportionate means of achieving a legitimate aim to exclude him.
13.5.6 A legitimate aim for excluding a trans person from a separate or single-sex service for their own biological sex might be to prevent alarm or distress for other service users. Whether it is reasonable to think that the presence in that service of the trans person will cause alarm or distress will depend on all the circumstances, including the extent to which the trans person presents as the opposite sex. For this reason, a service provider (including a person providing a service in the exercise of public functions) should only consider doing this on a case-by-case basis.
13.5.7 The service provider should consider whether there is a suitable alternative service for the trans person to use. In the case of services which are necessary for everybody, such as toilets, it is very unlikely to be proportionate to put a trans person in a position where there is no service that they are allowed to use.
13.5.8 If the service provider does not act proportionately, this is very likely to amount to direct or indirect discrimination because of gender reassignment (s.13 and s.19).
Example
13.5.9 Group counselling sessions are provided for female survivors of domestic violence. The service provider excludes a trans man from the sessions because he presents as a man and the service provider is concerned that women service users could reasonably be alarmed or distressed by his presence.
The service provider’s decision to exclude the trans man from the service could amount to direct gender reassignment discrimination because he has been treated less favourably than a woman without the protected characteristic of gender reassignment. However, in this situation the service provider is likely to be able to rely on the exception from liability explained in paragraph 13.5.4, because the decision to exclude the trans man was proportionate.
13.5.10 If the nature of a service means that it is only, or generally, used by women or by men, this does not mean that it is necessarily a separate or single-sex service under the Act. A service like this does not need to operate according to the rules and principles described in paragraphs 13.2.10 to 13.5.9. However, the Act (Sch 3 paragraph 30) contains a different exception which means that, in services of this sort, it will not be unlawful discrimination if the service provider refuses to serve a person of the opposite sex, if it would be impracticable to provide the service to that person. The service provider can also refuse to adjust the way in which the service is provided to cater for a person of the opposite sex. This exception applies to all protected characteristics in the Act, not just sex.
Example
13.5.11 A hospital provides an Obstetrics and Gynaecology outpatient service. Only women and trans men need to use the service. The hospital provides the service to women and trans men in a way which preserves all users’ privacy and dignity.
The hospital can refuse to allow a man or a trans woman to access the service because it does not offer any treatment which is suitable. This means that it would be impracticable to treat a man or a trans woman. It could also be impracticable to do so if it would impact on the privacy and dignity of the women and trans men who use the service.
The hospital can also refuse to adjust the way in which it provides the service.
Example
13.5.12 A trans man attends a gym frequently and uses the women’s changing room, consistent with his biological sex. If the gym owner decides that he can no longer use the women’s changing room and there is no other changing room he can use this may be a disproportionate decision. If it is disproportionate, the gym owner will not be able to rely on the exception for gender reassignment discrimination (Sch 3 paragraph 28). The trans man will be able to bring a complaint of direct gender reassignment discrimination, because he has been treated less favourably than a woman who does not have the protected characteristic of gender reassignment.
The explanation of the legal rights and responsibilities set out in the updated section on separate or single-sex services in relation to gender reassignment is clear.
Strongly Agree.
Updated content on communal accommodation
13.6.1 The Act does not prohibit sex discrimination or gender reassignment discrimination where a person does anything in relation to admitting persons to communal accommodation, or providing any benefit, facility or service linked to the accommodation (Sch 23 paragraph 3(1)). This exception applies if the criteria set out in paragraphs 13.6.4 to 13.6.6 are satisfied.
13.6.2 ‘Communal accommodation’ is residential accommodation which includes dormitories or other shared sleeping accommodation which, for reasons of privacy, should be used only by persons of the same sex (Sch 23 paragraph 3(5) to (6)). It can also include:
shared sleeping accommodation for men and for women
ordinary sleeping accommodation
residential accommodation, all or part of which should only be used by persons of the same sex because of the nature of the sanitary facilities serving the accommodation
13.6.3 A benefit, facility or service is linked to communal accommodation if it cannot be properly and effectively provided except to those using the accommodation. It can only be refused to a person if they can lawfully be refused use of the accommodation (Sch 23 paragraph 3(7)).
13.6.4 This exception only applies if the communal accommodation is managed in a way that is as fair as possible to both women and men (Sch 23 paragraph 3(2)).
13.6.5 When excluding a person from use of communal accommodation because of sex or gender reassignment, the service provider, person exercising public functions or association must consider:
whether and how far it is reasonable to expect that the accommodation should be altered or extended or that further accommodation should be provided, and
the relative frequency of demand for the accommodation by persons of each sex (Sch 23 paragraph 3(3))
13.6.6 Excluding a person from use of communal accommodation provided for their own biological sex because of gender reassignment will only be lawful if it is a proportionate means of achieving a legitimate aim (Sch 23 paragraph 3(4)). The matters which a service provider, person exercising public functions or association should consider are similar to those set out in paragraphs 13.2.1 to 13.2.23.
The explanation of the legal rights and responsibilities set out in the updated content on communal accommodation is clear.
Agree.
Do you have any other feedback about the content of the Code of Practice that you have not already mentioned? Include references to specific changes where relevant
This is overall a very clear draft. One area where significant clarity should be provided explicitly is that a service provider providing single-sex or separate-sex services are not required to conduct a case-by-case assessment in the provision of that service, except when excluding someone of the same biological sex as the service because they appear as members of the opposite sex. While the Code is clear that case-by-case assessment will be needed in relation to this exclusion, it should be clear that provided it is proportionate to set up a single-sex service “the female only nature of the service would engage paragraph 27 and would permit the exclusion of all males including males living in the female gender regardless of GRC status" (FWS para 221).
Further, the Supreme Court has already previously made it clear that proportionality requirements do not necessarily require a case-by-case analysis and that policies can be held to be proportionate at the general level. As the Court said in Reference by the Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32:
“questions of proportionality, particularly when they concern the compatibility of a rule or policy with Convention rights, are often decided as a matter of general principle, rather than on an evaluation of the circumstances of each individual case. Domestic examples include R (Baiai) v Secretary of State for the Home Department[2008] UKHL 53; [2009] 1 AC 287, the nine-judge decision in R (Nicklinson) v Ministry of State for Justice [2014] UKSC 38; [2015] AC 657, and the seven-judge decisions in R (UNISON) v Lord Chancellor (Equality and Human Rights Commission intervening) [2017] UKSC 51; [2020] AC 869 and R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26; [2022] AC 223.”
It is entirely within the discretion of employers or service providers to adopt general rules and policies. An assessment of these rules and policies can be done with regard to the rule or policy itself without the need to conduct a full proportionality test every time a rule or policy is applied.
Finally, the Code should include some examples of where providing a mixed-sex service will amount to unlawful sex discrimination, particularly against women. It should be made clear, using examples not just the text of the Code, where a trans inclusive policy could be unlawful.
Example:
A gym has two large rooms for communal changing. It has signs on the door to each room labelled “women” and “men” respectively but has a policy of allowing service users to use whichever changing room they feel most comfortable with. This is not a single- or separate-sex service for the purpose of Schedule 3 EqA. Several female users of the gym complain that they have not been provided with adequate changing facilities and that this puts them at a detriment compared to men because a mixed-sex changing facility exposes them to heightened risks of safety and privacy interference. This will very likely be unlawful sex discrimination.
This is very useful, thanks, Michael.
Have cross posted.
https://dustymasterson.substack.com/p/i-have-been-to-the-mountain-top
Dusty
Really helpful, Michael. I haven't submitted my responses yet as I've been away. Will be doing so this weekend so very useful to have seen yours.