Single-sex services after the EHRC Code: a checklist for advising service providers

Advising on single-sex services changed on 5 August 2026, when the EHRC’s revised statutory Code of Practice on Services, Public Functions and Associations came into force under SI 2026/788. The Code creates no obligations of its own. What it does is supply the standard a court or tribunal must take into account, which makes the reasoning a client records more important than the decision it reaches.

This checklist is written for advisers. It sets out the legal effect of a statutory code, the Equality Act machinery the Code interprets, the gap on the employment side, and what to put on file.

Who is this checklist for?

Anyone advising a client that provides a service, exercises a public function or runs an association. That reaches a good deal further than the sectors the coverage has concentrated on, and picks up commercial landlords, membership bodies, sports and leisure operators, healthcare and social care providers, hospitality, retail and education.

It is not a guide to the substantive law of gender reassignment discrimination, and it takes no position on the policy questions. It addresses the narrower professional question of how to advise a client whose position is now measured against a document that came into force this month.

What is the legal effect of a statutory code?

A code issued under the Equality Act 2006 does not impose duties, and a provider does not breach the Code as such. The EHRC’s own position is that the Code “does not impose legal obligations” and is not an authoritative statement of the law, since only the courts can supply that.

Three consequences follow, and they are the ones worth conveying to a client.

The Code is admissible in evidence in proceedings under the Act. A court or tribunal must consider any part of it that appears relevant to a question arising in those proceedings. And a provider that follows the guidance may thereby help itself avoid an adverse decision, which is a very different proposition from compliance.

So the question a client should be asking is not whether it is now required to do something. It is what a tribunal would make of its position when that position is measured against the Code, and whether the reasoning behind it exists anywhere a tribunal could look.

That reframing usually needs to be made explicitly, because clients arrive at this conversation expecting a rule and are disconcerted to be told there is not one. The useful analogy is with any other statutory code a practitioner already works with: the document tells you how the regulator reads the legislation and how a tribunal is likely to approach it, which is worth a great deal without being the same thing as a source of obligation. A client that grasps the distinction will make a better decision than one that treats the Code as a compliance checklist, because it will reason from its own circumstances rather than from a general statement written for every provider at once.

What the Code says, and what the Act still does

The Code states that separately provided facilities for men and women should operate on a biological sex basis. It also states that requiring a trans person to use facilities matching their biological sex may amount to discrimination in some circumstances, and it presents gender-neutral provision as an option open to providers.

Both propositions sit in the document. They are not presented as alternatives to choose between, and that is what makes the Code difficult to apply mechanically: it contemplates that the answer may differ according to the service, the facility and the circumstances.

The analysis therefore returns to the Act itself. The separate and single-sex services provisions in Schedule 3 to the Equality Act 2010 are what permit a service to be provided separately or to one sex at all, and the requirement that any less favourable treatment be a proportionate means of achieving a legitimate aim is what the provider has to satisfy. The Code interprets that machinery. It does not replace it, and an adviser who reasons from the Code to a conclusion without going through the statutory test has skipped the part that decides the case.

Context worth giving clients: the Code follows the Supreme Court’s decision in For Women Scotland Ltd v Scottish Ministers [2025] UKSC 16, that sex in the Equality Act 2010 means biological sex, but it is a broader revision than that. The EHRC updated it to reflect more than a decade of legislative and case law development, including the legalisation of same-sex marriage and case law on the definition of disability. A client reading only the single-sex chapters will miss changes that affect it.

Services and employment now run on different codes

A client that both serves the public and employs staff is now working from a revised code on one side of its premises and an unrevised one on the other. That is not a reason to wait. An employer facing the question this month will not get an answer by holding out for guidance with no publication date attached to it, and our note on what the Code changes for advisers covers the gap in more detail.

What should go on file?

The reason documentation carries so much weight here, more than in most equality advice, is that the Code contemplates different answers for different services, so there is no position a provider can adopt that is safe by virtue of matching what the guidance says. What makes a position defensible is the fit between the provider’s circumstances and the conclusion it reached, and the only evidence of that fit is the record made at the time.

This is the part that does the work, whichever way a client decides.

• Identify the service precisely. Which facility, provided to whom, on what basis, and whether it is separate provision, single-sex provision or neither.
• Record the legitimate aim in the client’s own terms, not in the Code’s. Privacy, dignity, safety, health and the nature of the activity are all capable of qualifying, but the aim has to be the client’s actual reason.
• Record the proportionality reasoning. What alternatives were considered, including gender-neutral provision, and why the chosen approach was adopted over them.
• Record who decided, and when. A dated decision by a named person is evidence. A policy that appeared is not.
• Note what the Code was taken into account for. Showing that the relevant chapters were read and applied is itself worth having.
• Set a review point. The position may move, for the reasons below.
• Keep the employment analysis separate, on a separate file note, running on the Act and the earlier code.

Common mistakes

Treating the Code as a rule book. It is evidence in a claim, not a defence to one. Following it may help; it does not answer the statutory question.

Advising services and employment together. They now run on different codes, and advice that treats them as one problem will be wrong about one of them.

Recording the outcome and not the reasoning. A tribunal will examine whether the provider considered the question and reached a proportionate conclusion on the facts of its own service. A policy with no reasoning behind it is harder to defend than a policy the client can explain.

Waiting for the challenge to resolve. A legal challenge has been signalled with support from the Good Law Project, and 167 MPs tabled an early day motion for the Code to be disapproved. Neither affected commencement. Unless and until a court says otherwise the Code is in force and tribunals must take it into account, so a client cannot sensibly sit the position out. What the challenge does affect is the value of the file note, because a client that recorded its reasoning will be better placed under either outcome. The same discipline applies to policy drafting generally this autumn, alongside the Employment Rights Act commencement dates.

Official sources

The Code is published in English and Welsh on the EHRC website and on GOV.UK, alongside an equality impact assessment. The Commencement Order is on legislation.gov.uk and records that the 2011 Code was revoked on the same date. Clients likely to face the question should be reading the relevant chapters rather than summaries of them.

Last updated: 6 August 2026.