In April 2025, the Supreme Court ruled in For Women Scotland that the terms ‘man,’ ‘woman’ and ‘sex’ are to be understood as meaning ‘biological sex’ for the purposes of the Equality Act 2010. For all the legal clarity that this afforded in the interpretation of these terms, the decision gave rise to just as much confusion around how to implement this in practice. Now, a full year on, the Equality and Human Rights Commission (the +EHRC) has responded to the increasing demand for guidance, recently publishing the updated Draft Code of Practice for Services, Public Functions and Associations (the Code). The Code addresses a range of legal and real-world developments, however, as acknowledged by the explanatory notes the most significant changes are those flowing from the For Women Scotland judgment.
Headline points in the Code
Headline updates to the Code insofar as it relates to the implications of the For Women Scotland judgment are as follows:
A single-sex service by default refers to biological sex, and if a transgender person is included based upon their gender rather than their sex, this is no longer single-sex for the purposes of the Equality Act and could amount to unlawful discrimination against others; inclusion/exclusion of trans people must be justified as a proportionate means of achieving a legitimate aim.
Whilst it may be justifiable to provide single-sex services strictly on the basis of biological sex in relation to services which are necessary for everyone (such as toilets), it is “very unlikely to be proportionate” to leave a trans person with no access to services; mixed or additional provision may be required.
Trans people continue to receive protection from harassment and discrimination under the Equality Act through the ‘gender reassignment’ protected characteristic. The scope of this protected characteristic is relatively broad, namely “people who are proposing to undergo, are undergoing or have undergone a process to reassign their sex by changing physiological or other attributes of sex” and also includes individuals who are perceived to have this characteristic.
A trans person may also be protected from discrimination on the basis of ‘perceived sex’, for example where a trans woman suffers misogynistic treatment because she is perceived to be a woman.
How these changes will affect public law entities
To varying degrees, all public bodies will be affected by the changes brought about in the For Women Scotland decision. How a public entity is affected will depend on the functions it carries out. In addition to the general duties on public bodies, it may be an employer, a service provider, an association, and so on. A public body would be well-advised to review any policy which refers to sex or gender, and to re-examine any provision or service which is provided on a single or separate sex basis. It must consider whether the Equality Act allows for (or requires) single- or separate-sex provision in specific circumstances, and then it must carry out an in-depth proportionality exercise.
The Code provides some specific examples which may assist public bodies in carrying out this exercise, as does the For Women Scotland decision. However, many public bodies will find that their provision in practice is more complex and nuanced than the examples provided.
Enforcing any single-sex service is likely to be difficult. The Code states that it is unlikely to be either practical or appropriate to approach any individual to make enquiries about their sex in relation to facilities, such as toilets, which are incidental to the primary service. The Code states that a service provider may take into account “the individual’s physique or physical appearance, behaviour or concerns raised by other service users” in deciding if it is necessary to seek confirmation from that individual in respect of their eligibility for a service based upon their sex. This should be approached with caution – it will be challenging for service providers to follow this advice whilst ensuring that they do not discriminate against or harass any service users.
Relationship with the Public Sector Equality Duty
Alongside the new Code, organisations exercising public functions must continue to have regard to their existing public sector equality duty ('PSED') under the Equality Act. By way of reminder, the PSED requires relevant organisations to have due regard to the need to put an end to discrimination, advance equal opportunities, and foster good relations with regard to a number of specified protected characteristics.
Crucially, the protected characteristics include not only (biological) sex, but also discrimination based on the gender reassignment characteristic. Organisations bound by the PSED will therefore need to balance implementation of the new single sex guidance (which recognises that, in some cases, it may be proportionate to exclude trans people from single sex services) with their existing duty to have regard to the elimination of discrimination, advancement of equal opportunity for, and fostering of good relations with, people undergoing gender reassignment.
Whilst the Equality Act is generally focussed on discriminatory outcomes, the PSED is engaged at an earlier stage in the process in that it looks at how an entity makes its decisions and in particular its consideration of potential discrimination. It is important to emphasise that the PSED is in effect a process duty, to have regard to certain matters, rather than achieve any particular outcome.
On account of the difficult balancing act required where a decision risks discrimination on grounds of sex as well as on grounds of gender reassignment, organisations are advised to give careful consideration on a case-by-case basis. A decision may engage and potentially disadvantage groups protected by both sex and gender reassignment. To fulfil the PSED, an organisation would need to accurately identify this potential in its decision making.
Decision making in accordance with the PSED should include a thorough assessment of the impact on those with protected characteristics, seeking further information if needed. The more thorough the assessment, and the more nuanced the resulting decision, the more likely it is an organisation will be able to justify their approach. Organisations subject to the PSED should therefore be prepared to rigorously evidence their reasoning, regardless of how confident they are that the end result is not discriminatory.
Drafting robust single-/separate-sex space policies
This area is complex, contentious and extremely fact driven. No generic advice will be able to cover all possible considerations relevant to an organisation’s situation.
In implementing a single-sex policy, all decision making should be well thought out and not reactionary. As a starting point, practitioners should consider the example situations covered in the Code as well as the For Women Scotland decision to identify if there are any relevant examples which can provide guidance.
It should be considered whether, in these circumstances, single-sex services are justified or appropriate or whether separate-sex services would be more proportionate. A practitioner should carefully consider whether the exclusions under the Equality Act apply, or whether other exceptions apply (such as the charities exception). If relying on an exclusion or exception, the relevant test should be carefully considered, including in respect of the “legitimate aim” and proportionality.
This should take account of the impact upon different groups affected, and especially the categories of people who are being excluded from the provision. It may be advisable to seek further information as part of this step, for example by way of a survey. It will be less likely to be a proportionate policy if there is a way to achieve the same aim with a lesser negative impact on affected individuals. Cost and practicality are factors in the proportionality exercise. A practitioner should ensure that the policy allows for flexibility and additional assessment of the facts where the scenario is complex.
The client should be advised to maintain a detailed record of its decision-making process, including evidence of any negative impacts identified, any mitigations adopted, or any justificatory factors identified. The client should be advised on enforcing such a policy and providing adequate staff training in this respect.
Conclusion
This area of law remains complex and in many ways unclear. However, if an organisation can show that it has fulfilled its obligations under the PSED, and it is able to justify its position with reference to the considerations in the Code, then it reduces the risk that it will be in non-compliance with its obligations under the Equality Act.
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