From 2 October 2024 - 3 January 2025, the Equality and Human Rights Commission ('EHRC') consulted on proposed amends to its statutory Code of Practice for Services, Public Functions and Associations ('the Code of Practice'), last updated in 2011.
As a result of the judgment in For Women Scotland Ltd v the Scottish Ministers [2025] UKSC 16, and its ramifications on the definition of legal sex, the EHRC is now conducting a further consultation exercise on the sections of the Code of Practice affected by the judgment.
The consultation
The consultation, launched on 20 May 2025, includes an update to the definition of legal sex. Where the Code of Practice currently defines legal sex as "the sex that was recorded at your birth or the sex you have acquired by obtaining a Gender Recognition Certificate", the update will remove the second part of the definition, defining legal sex as "the sex that was recorded at your birth" instead.
The consultation seeks views on amends to 6 chapters of the Code of Practice, and we consider that public authorities generally and healthcare providers in particular will have an important role in contributing to the consultation on the following proposed amends:
- How requests about sex at birth should be made, and examples of when it may be (and may not be) necessary and proportionate to do so
- Considerations in deciding whether separate and single-sex services are a proportionate mean of achieving a legitimate aim, and when mixed-sex services may be necessary
- Policies and exceptions for separate or single-sex services, including in relation to gender reassignment
While the consultation is running, the EHRC will hold Q&A sessions with stakeholders representing affected protected characteristic groups (although those participating in these sessions will still be expected to submit a consultation response).
The EHRC will review the consultation responses and make necessary amendments to the Code of Practice, before it is submitted to the Minister for Women and Equalities for approval and to be laid in Parliament.
The consultation will close at 11:59pm on 30 June 2025. Organisations, individuals and legal professionals can respond to the consultation via the EHRC's website.
How we can help
Our lawyers have built up extensive experience of advising on a broad range of often sensitive and high-profile gender identity related areas, such as advice to public bodies on policies and provision of services. For further information on how we can help, contact Alistair Robertson or Awen Edwards.
