The new EHRC Code of Practice: What your charity needs to know

The Equality and Human Rights Commission (EHRC) is a statutory body established to enforce equality legislation in England, Scotland and Wales. On 5 August 2026, its updated code of practice for services, public functions and associations (Code) came into force, reflecting the Supreme Court ruling that "sex" means biological sex under the Equality Act 2010 and highlighting key statutory guidance for operating single-sex services, separate sex services, memberships, and facilities.

Samantha Pritchard, partner, and Ryan Douglas, paralegal, both in our charities team, discuss the updates to the Code in this article.

What does the updated EHRC Code of Practice now cover?

The Code provides statutory guidance on the application of the Equality Act 2010 (EQA) but does not change the law or create new legal obligations. The purpose of the Code is to support service providers on how they can comply with the EQA.

The updated Code has been highly anticipated following the Supreme Court’s ruling in the For Women Scotland case, where it was held that the terms “sex”, “man” and “woman” for the purposes of the EQA refer to biological sex, biological man and biological woman respectively.

Who does the EHRC Code of Practice apply to?

• Service providers – this includes any business or other organisation that offers or sells goods, facilities or services to the public. There is no requirement that a service must be a paid service for the EQA (and therefore Code) to apply. Many charities that offer services to their beneficiaries or the wider public for free or for a nominal charge will be required to comply with the EQA and Code, as well as grant makers.
  
  
• Public functions – such as government departments and local authorities.
  
  
• Associations – such as private members’ clubs, political groups and sports clubs.

What are the key changes to the EHRC Code of Practice?

Single sex services

It is common for services to be offered solely to men or women. For example, providing a men’s mental health support group or providing housing to women escaping domestic violence.

The EQA allows providers to restrict services to one sex where doing so is “a proportionate means of achieving a legitimate aim”. This is a legal test which requires organisations to demonstrate that the benefits of restricting a service to a single sex outweigh the negatives of not allowing people of the opposite sex to use the service. Where this test is met, an organisation will not be held to be discriminating against people of the opposite sex.

The Supreme Court’s decision clarified that for the purposes of the EQA, biological sex means the sex a person is assigned at birth and biological sex cannot legally change, even with a gender recognition certificate.

Transgender people are therefore legally considered to be the sex they were assigned at birth. Under the EQA, a trans man is legally a biological woman and a trans woman is legally a biological man and the definition of biological sex applies whenever a service provider creates a single sex service.

This means that where a single sex service is established, only people of that biological sex should be able to access it. A trans woman could therefore not access a single sex service aimed at biological women, and a trans man could not access a single sex service aimed at biological men. If a single sex service is offered to trans people of the opposite sex, it is very likely to amount to unlawful sex discrimination and the exception in the EQA will not apply.  The organisation would then be at risk of a discrimination claim being made against it by those who are excluded from access.

Single sex spaces

The Code also provides additional guidance on how organisations can ensure they are complying with their obligations under the EQA when providing single sex spaces such as toilets and changing facilities.

Where possible, arrangements should be made so that all service users have access to appropriate facilities. This includes, where applicable, access to single sex spaces. The Code suggests that service providers conduct a balancing exercise to determine if arrangements or adaptations are required to meet the needs of all their service users. The Code states that in many cases it will be proportionate to take a holistic approach and offer access to both separate or single sex spaces and mixed sex spaces, taking into account the size of the services provided and the needs and relative numbers of service users.

Alternative arrangements should be made where possible to allow a trans person to access facilities where they feel unable to access single sex spaces for their biological sex. Examples given in the Code include allowing trans people to use family or disabled toilets and changing rooms that are designed to be used by people of both sexes.

The practicality, cost and required use of any changes to arrangements can all be considered when determining proportionality. What works for one organisation may not work for another. The key is for organisations to consider and document the reasons for their decisions and that they have properly considered the impact their decisions may have on people accessing their services. This includes people with one or more protected characteristics, not just sex.

What do charities need to consider about the EHRC Code of Practice?

While the primary focus of the updates to the Code has arisen from the Supreme Court’s decision in the For Women Scotland case, sex is not the only protected characteristic that service providers need to ensure they are not discriminating against.

Gender reassignment is a protected characteristic under the EQA and applies to anyone who is proposing to undergo, currently undergoing or has undergone a process to reassign their sex by changing physiological or other attributes of sex.

A trans person may have the protected characteristic of gender reassignment and a service provider is obligated not to discriminate against that protected characteristic in the same way as any other protected characteristic.

This means that service providers should consider the needs of those with a protected characteristic of gender reassignment when they are considering how they will deliver their services.

In addition, there is an exception in the EQA that allows charities to restrict their services to people who share a particular protected characteristic where this is a requirement of their charitable purpose (and meets other tests).

The Charity Commission is updating its guidance on how the Equality Act applies to charities and this is anticipated to be published this Autumn.

For legal advice on how you can ensure you are complying with the EQA in providing services, please contact Samantha Pritchard via [email protected] or 0191 2117905.