Guidance on single-sex spaces - updated EHRC Code of Practice

Once in force, the statutory Code will have legal status and will set out how service providers, public functions and associations can meet their duties under the Equality Act 2010 ("the Act"). It is not intended to override any provisions of the Act, instead it is intended to illustrate the principles and concepts used in the Act.

This article focuses on the provisions of the Code relating to single and separate-sex spaces, and the manner in which service providers and those exercising public functions should interpret the Act in light of the Supreme Court's judgment in For Women Scotland Ltd v the Scottish Ministers [2025] UKSC 16. In that judgment, the Supreme Court held that the terms "man", "woman" and "sex" in the Act referred to biological sex.

As a result, service providers and those exercising public functions are now revisiting when and how single or separate-sex spaces can be lawfully provided in practice. The Code does not apply directly to employers. However, its content will still be of interest, as explained further below.

Importantly, the basic presumption under the Act has not changed. That presumption is that discrimination because of a protected characteristic (e.g. sex) is unlawful unless any exception applies, and any exception to the prohibition of discrimination should generally be interpreted restrictively.

There are broader updates to the Code which are outside the scope of this article.

Separate-sex services

The Act provides that it is not unlawful sex discrimination to provide separate services for each sex if

• A joint service for persons of both sexes would be less effective; and

• The limited provision is a proportionate means of achieving a legitimate aim.

Single-sex services

The Act provides that it is not unlawful sex discrimination for a service provider to provide services exclusively to one sex, as long as to do so is a proportionate means of achieving a legitimate aim, and at least one of the following conditions apply:

• Only people of that sex need the service

• A service that is provided jointly for both sexes is not sufficiently effective without providing an additional service exclusively for one sex.

• 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.

• The service is provided at a hospital or other place where users needs special care, supervision or attention.

• 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).

• The service is likely to involve physical contact between the service user and another person and that other person might reasonably object if the user is of the opposite sex.

A list of illustrative examples in relation to each of the above conditions can be found in the Code.

When considering whether providing a separate or single-sex service is proportionate, the service provider 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.

Accommodating trans service users in separate / single-sex services

The Code provides specific guidance as to how trans service users are to be accommodated in separate or single-sex spaces. It explains that "in separate or single-sex services, a trans man will be excluded from the men-only service because his sex is female and a trans woman will be excluded from the women-only service because her sex is male. Trans people are likely to be disadvantaged by this, by comparison to people who are not trans".

The Code explains that "the service provider should consider whether the disadvantage to trans people …. 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".

The Code recognises that "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 Code is clear 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 Act and is therefore likely to be unlawful sex discrimination.

Recognising that it will usually be helpful and often necessary for service providers to have a policy setting out whether, and if so how, separate or single-sex services will be provided – the Code adds that individual circumstances may, exceptionally, require a different approach to that set out in a policy. One example, is in circumstances where service providers can lawfully modify trans people's access to the service for their own sex (i.e. modifying a trans woman's access to male provision, and vice versa) if doing so is a proportionate means of achieving a legitimate aim.

For the avoidance of doubt, the Code reiterates that "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". Failure to act proportionately is likely to give rise to direct or indirect discrimination because of gender reassignment.

Points for practice

The Code offers guidance to service providers on:

• When and how it will be appropriate to ask service users about their sex in a manner that is consistent with the service user's Article 8 right to privacy; and

• How any information acquired about a service user’s sex is to be protected in accordance with data protection legislation and the prohibition of disclosure under the Gender Recognition Act 2004.

A balancing act?

The updated Code emphasises the importance of taking proportionate, well-documented decisions that balance the needs of all service users.

In deciding whether to provide services that are single-sex, separate sex or mixed-sex, service providers and those exercising public functions should strike a fair and proportionate 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.

It also remains the case that the basic presumption under the Act is that discrimination because of a protected characteristic (e.g. sex) is unlawful unless any exception applies, and any exception to the prohibition of discrimination should generally be interpreted restrictively.

Relevance to employers

As noted above, the updated Code does not apply to employers. That said, the definitions of discrimination and justification which the updated Code deals with are common to employers and service providers. So, its guidance on indirect discrimination, legitimate aims and proportionality still has illustrative value where employers are seeking to defend claims of indirect discrimination, in particular in relation to their policies on access to workplace toilet and changing facilities. The approach in the updated Code may also be indicative of the direction of travel in this area. If and when the EHRC produces updated guidance for employers, it is likely to take a similar approach.

Next steps

If the Code comes into force as it is currently laid in Parliament, it is possible that there will be further legal challenge to the substance of the Code.

For tailored advice about how the updated Code will impact your organisation, or to discuss defensible decision-making in line with the Equality Act 2010 - please contact our authors.