Following the Supreme Court’s decision in For Women Scotland v Scottish Ministers (FWS) in April 2025, an updated draft Statutory Code for Services, Public Functions and for Associations (draft Code) has been issued by the equalities watchdog, the Equalities and Human Rights Commission (EHRC). This provides guidance for affected organisations in how to comply with the Equality Act 2010 (the Act). This has now been laid before Parliament for a period of 40 days, after which point (subject to any amendments made), it will become official guidance.
The Court in FWS decided that for the purposes of interpreting the Act, the terms ‘sex’, ‘woman’ and ‘man’ meant biological rather than the individual’s acquired sex.
The draft Code will be relevant to organisations that provide services to the public, including hospitality, gyms, and health care providers. While this does not directly relate to employment situations (guidance for which is due to be updated) it may provide an indication of what that guidance is likely to say in respect of the provision of and access to single-sex facilities in the workplace.
The draft Code states that if services or facilities are being provided on a single-sex basis, for example single-sex spaces including toilets and changing rooms, then access must be on the basis of biological sex, otherwise they will no longer be considered to be single sex, which could leave the organisation open to discrimination claims.
In practice, the updated draft Code will mean that a trans male for example (a biological female who identifies as a man) should not therefore use male toilets or changing rooms, with the EHRC guidance outlining that transgender people should instead be offered a gender-neutral space.
Whether an organisation can restrict access to services and facilities on a single-sex basis will depend on whether it is proportionate to do so.
The draft Code continues that leaving a trans person without access to any suitable services or facilities could itself be classed as discriminatory.
As mentioned, whilst the Code does not itself apply to employment situations, where there may also be different considerations to bear in mind, it may still be of assistance to employers by setting out how the FWS decision is being applied in practice in other areas.
Here, we break down what employers need to consider following the recent announcement:
- The main area of interest for employers is probably access to toilets, cleaning and changing facilities. It’s likely that access to single sex spaces such as these will be required on a biological sex basis.
- Toilets and changing facilities in the workplace are not governed by the Act, but by separate health and safety regulations. However, it’s arguable that this legislation could be interpreted in the same way, i.e. references to ‘sex’ meaning biological sex – this is the interpretation given to those regulations in previous EHRC guidance, which was found to be lawful.
- If an employer is only allowing access on a biological sex basis, they will need to ensure that suitable alternatives are provided for trans employees – a failure to do so could be discriminatory.
- If an employer is providing toilets and changing facilities in separate cubicles with floor to ceiling walls and doors, which are lockable from the inside, then it’s likely that access to those can be provided to anyone, whichever sex.
- The draft Code provides some guidance on when an employer can ask for information from people seeking to use the relevant facilities for the purposes of lawful single or separate-sex facility provision (13.166 – 13.180) and assessing whether they are of the requisite biological sex. This guidance may also be relevant in an employment scenario although, practically speaking, is likely to still create some difficult practical issues for employers and great care must be taken. Employers should also be aware of the restrictions regarding asking for information or evidence of a Gender Recognition Certificate, with the subsequent disclosure of that information without consent potentially amounting to a criminal offence. There will also be data protection considerations since this information will constitute special category data.
The Code does not impose legal obligations on affected organisations, but can be used in evidence in legal proceedings, with courts and tribunals required to take relevant parts into account. There remains some uncertainty in the context of employment relationships, added to by various Employment Tribunal decisions regarding toilet and changing facilities which have come to slightly different conclusions. Nonetheless, this Code may offer some further assistance to employers in some respects.
The degree to which the draft Code and the FWS decision will impact upon employers will differ on a case-by-case basis, and employers should seek tailored legal advice specific to their business. If your business needs any support regarding the issues that arise from the draft Code and the decision in FWS, please contact our team and we will be happy to assist.