EHRC Code of Practice: service providers

On 5 August 2026, whilst many of us were either acclimatising or suffering under sweltering temperatures, the Equalities and Human Rights Commission Updated Code of Practice for Services, Public Functions and Associations came into effect. 

Sounds long-winded and complex; it is both those things, but it is also one of the most contested updated Codes in recent years.  It updates the original code to reflect the Supreme Court decision in the For Women Scotland Case (FWS) in April 2025.  As a reminder, this case confirmed that “sex” means biological sex for the purposes of the Equality Act 2010. 

Who is required to follow the Code?

The Code applies to the provision of services, and the steps organisations should take to ensure that people with a protected characteristic are not discriminated against when using that service.  Such discrimination is unlawful under Part 3 of the EqA 2010.  

Does the Code have any legal status?

As with other Codes of Practice, the Code does not impose stand-alone legal obligations; however, a failure to follow the Code can be used as evidence in a discrimination claim and will be considered as a key factor by courts and tribunals. 

Is it applicable to employers in relation to the staff you employ?

CRUCIALLY, IT IS NOT.  The EHRC has promised a review of the Code of Practice for employers, although we have seen no sign of a consultation. Do read the second blog in this series for more information on employers' duties.   

What are the key updated parts of the Code?

The key updated parts relate to the exceptions to discrimination in the provision of services as outlined in Schedule 3 of the EqA 2010. These exceptions permit the provision of separate and single sex services in certain defined circumstances without being discriminatory. Considering the FWS judgement, the Code has been updated to reflect that decision and confirm that any lawful provision of separate and single sex services must be based on biological sex.   

Can service providers still lawfully provide single sex toilets?

The answer is not simple! The EqA 2010 requires any service provider who restricts the provision of a service to one sex or on a single sex basis (based on biological sex) to demonstrate that this restriction is a proportionate means of achieving a legitimate aim. 

The Code sets out (par 13.113 – 13.133) guidance for providers with this balancing exercise when providing single sex toilets/bathrooms.  It notes that an example of a legitimate aim could be ensuring the safety of women or the privacy and dignity of women or men.  However, when considering whether that aim is proportionate, the provider must consider all potential service users and whether there is a fair balance between the needs of those accessing the service and the impact on those who are excluded from it. 

That latter point is crucial when considering the provision of single sex bathrooms/toilets and trans people.  The Code notes that the service provider should “consider whether there is a less intrusive option than excluding trans people which could be proportionate” (par 13.119) 

The Code suggests (par 13.122) a holistic approach whereby a mix of services, including separate or single sex services and mixed sex services, are provided. This could mean toilet provision for men and women separately (based on biological sex) in addition to individual lockable rooms with handbasins that can be used by people of either sex. The mix and number of each provision would reflect the number of potential service users. 

In another example where such mixed provision is not possible given the resources of the service provider, the Code advises that extending the use of an accessible toilet for anyone who does not wish to use the toilet aligned to their biological sex would be proportionate.  However, it notes that the organisation should monitor the impact of this decision on both trans users and disabled users (par 13.124).

The Code reiterates that discrimination on the grounds of gender reassignment is unlawful and that whilst the provision of single sex bathrooms may be permitted, forcing a trans man to use a female-only provision (or vice versa) and/or failing to provide alternative provision would most likely constitute discrimination on the grounds of gender reassignment. 

Can providers “police” the use of single sex services?

Again, there is a balancing act to be carried out here. A single sex provision which is accessed by individuals of the opposite sex is no longer a lawful exception under the EqA 2010.   For example, if trans women are permitted to use a women’s-only bathroom, it is no longer a single sex provision.   Members of the opposite sex who are prevented from using it could potentially bring a discrimination claim.  However, the Code is very clear that strict policing of single sex services, barring individuals from entering a single sex toilet or questioning them as to their sex, is unacceptable and any enquiries should be made sensitively, privately and proportionately.   Any request from a service user to confirm their sex must respect their privacy.  The code notes that when toilets are “incidental” to the primary service, then “it is unlikely to be either practical or appropriate to approach any particular individual to make enquiries about their sex in relation to facilities” (par 13.170).

The Code (par 13.167) promotes the use of signage and verbal information for ensuring lawful use of single sex services.  Only where there is clear evidence of an issue should any steps be made to enquire about eligibility and only when the toilets are not incidental to the primary service. 

The publication of this Code, while useful for service providers, is not definitive and there are still practical implications and issues to be considered.  Given that the case law in the last 12 months alone has been contradictory and contentious (see our blog post here), we would expect to see more cases and commentary as providers look to put this Code into practice or not, as is the case with a number of London local authorities. 

We would advise service providers to seek specific and individual advice on any questions they have, either on the implementation of the Code or their concerns about current provision.