The EHRC Services Code After For Women Scotland: Key Legal and Practical Issues

The Equality and Human Rights Commission (“EHRC”) has now published its updated Statutory Code of Practice on Services, Public Functions and Associations following the Supreme Court’s decision in For Women Scotland v Scottish Ministers.

The Code is already reshaping how organisations think about toilets, changing rooms, refuges, healthcare settings, sports facilities, associations and other sex-segregated services. Yet much of the public discussion has generated more heat than clarity.

It is noted that the EHRC suggests it is unlikely to be either practical or appropriate to approach any particular individual to make enquiries about their sex in relation to facilities, such as toilets, which are incidental to the primary service [13.170].

For lawyers, service providers and individuals affected by these changes, the more difficult questions are not ideological but operational:

• When can a service lawfully be separate-sex?
• When is a mixed-sex model legally preferable?
• What does proportionality actually require?
• And how should providers balance dignity, privacy, inclusion, safeguarding and practicality in real-world settings?

Those questions are unlikely to be answered by slogans alone.

This article is correct at the time of writing in the author’s interpretation of the proposed Code, and it is not legal advice. Individual advice should be obtained if you are an individual or organisation navigating what the EHRC code means for you.

The legal status of the Code

The Code itself expressly states:
“The Code does not impose legal obligations. Nor is it an authoritative statement of the law: only the courts and tribunals can provide such authority. However, the Code can be used in evidence in legal proceedings brought under the Act. Courts and tribunals must consider any part of the Code that appears relevant to any questions arising in such proceedings.” [1.6]

That caveat is important. The Code is not primary legislation. However, it is still influential.

In practical terms, many organisations will understandably treat the Code as the safest available roadmap for litigation risk management.

At the same time, the Code itself repeatedly reminds readers that proportionality, context and fact-sensitive assessment remain central to Equality Act analysis. [13.113–13.122]

That point is sometimes being lost in commentary suggesting that the Code creates automatic or mandatory outcomes in every setting.

The significance of “services”, and why that matters

One of the most important structural points in the Code is often overlooked.

This Code concerns:

• services;
• public functions; and
• associations. [1.8–1.12]

It is not primarily an employment code. Nor is it a code for service users per se. It is generally service providers who may or may not be liable for future discrimination claims, as opposed to individuals being claimed against.

Indeed, the accompanying Explanatory Memorandum expressly states: “This Code does not relate to the employment practices of businesses, charities or voluntary bodies.” [Explanatory Memorandum, 9.4]

Questions concerning:
– workplace toilets;
– staff facilities;
– occupational health;
– harassment between employees; and
– workplace regulations
may engage materially different legal considerations from those arising in relation to public-facing services.

One increasingly sees organisations importing “service user” reasoning directly into employment contexts without pausing to analyse whether the underlying legal framework is actually the same.

The architecture of the single-sex exceptions

The starting point under the Equality Act remains that services should ordinarily be provided without discrimination (s.29 EqA).

Separate-sex and single-sex services are exceptions to that general principle, within Sch.3 EqA.

The Code explains that providers must first satisfy one of the statutory conditions permitting separate-sex provision. [13.92–13.111]

So, it may be lawful to provide separate-sex services (1) a joint service for women and men would be less effective, and (2) providing the service separately to women and men is a proportionate means of achieving a legitimate aim [13.92].

If these conditions do not apply, the provision of separate-sex services is likely to be unlawful sex discrimination [13.93].

Proportionality is not a tick-box exercise. It requires balancing competing rights and interests. It also requires consideration of whether less intrusive alternatives could realistically achieve the same objective [13.113–13.133]

When considering whether providing a separate or single-sex service is proportionate, the service provider (including a person providing a service in the exercise of public functions) should consider all potential service users and whether there is a fair balance between:

1. the benefits of offering the service as a separate or single-sex service, and
2. the needs of those who are accessing it, and
3. the impact on those who are excluded from accessing it [13.115]

In practice, that means organisations are unlikely to be able simply to assert: “privacy”, “safety” or “discomfort” without evidence-based reasoning.

The more intrusive the exclusionary impact, the more carefully a tribunal is likely to scrutinise whether the measure genuinely goes no further than necessary.

Mixed-sex services as a starting point

One feature of the public debate that has sometimes been overlooked is that the Code does not establish single-sex provision as the default model for all services.

To the contrary, the Code repeatedly proceeds from the premise that mixed-sex services remain lawful and often appropriate [13.101–13.103].

Single-sex exceptions are framed as derogations requiring justification [13.113–13.122].

That becomes particularly important when considering proportionality.

A provider seeking to operate a separate-sex service must consider whether:

• a mixed-sex service;
• cubicle-based provision;
• lockable self-contained spaces; or
• other alternative arrangements

could achieve the same legitimate aim with less discriminatory impact. [13.120–13.122]

This is likely to become increasingly important in future litigation.

For example, in many modern environments:

• floor-to-ceiling cubicles;
• self-contained changing rooms;
• enhanced privacy design; or
• individual lockable facilities

may substantially reduce the justification for more exclusionary arrangements.

The Code itself gives examples of providers introducing individual lockable facilities capable of use by anyone.

In some contexts, mixed-sex provision may therefore become not merely permissible, but arguably the more proportionate option.

When may separate-sex provision still be justified?

None of this means separate-sex services have disappeared.

The Code expressly recognises that there remain contexts where separate-sex provision may lawfully be justified, including:

• refuges;
• intimate healthcare;
• communal accommodation;
• certain counselling services;
• and settings involving privacy, trauma or bodily exposure. [13.99–13.111]

The key point is that the justification analysis remains context-specific.

The proportionality assessment for:

• a rape crisis service;
• a gym changing room;
• a hospital ward;
• a community café;
• and a shopping centre toilet

may look very different.

That is because proportionality under the Equality Act is intensely fact-sensitive.

The Code itself recognises this repeatedly through references to:

• balancing exercises;
• practical alternatives;
• context;
• consultation;
• and case-by-case assessment. [13.113–13.122; 13.134–13.138; 13.143]

In other words, the legal analysis remains far more nuanced than:
“single-sex spaces are good” or “mixed-sex spaces are bad”.

The most controversial paragraphs: 13.130 onwards

The provisions attracting the greatest attention are paragraphs 13.130–13.145.

The Code states:

“13.130 If a service provider (or a person providing a service in the exercise of public functions) admits trans people to a service intended for the opposite sex, then it can no longer rely on the exceptions set out at paragraphs 13.99 to 13.111. This means 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 Equality Act 2010.

13.131 A service like this is very likely to amount to unlawful sex discrimination against the people of the opposite sex who are not allowed to use it. A service which is provided to women and trans women could also be unlawful sex discrimination or lead to unlawful harassment against women who use the service. Similar considerations would apply to a service provided for men and trans men. It is possible to offer a mixed-sex service alongside a single-sex service. A mixed-sex service must be open to all service users. The practical effect seems that the Code discourages gender-identity-based “women’s spaces” operating under the single-sex exceptions.”

In practical terms, this seems to indicate that a trans woman would have to use either the men’s or a third space – if that even exists, and may not be equivalent.

However, even here, some important nuances remain.

First, the Code does not prohibit providers from operating mixed-sex or gender-neutral services open to everybody [13.130–13.144].

Secondly, the Code does not state that exclusion is mandatory in every context. At [13.135] it considers where a different approach may be required. It gives an example of a woman taking her male child to the bathroom and showing that may be permissible [13.136].

It does not seem that trans people are permitted such treatment under this Code.

There is also a ‘double exclusion’ of, most probably, trans men, at [13.145] which indicates that they may be legitimately excluded from men’s and women’s spaces, leaving them only a third space, if one exists.

The unresolved tension around “gender spaces”

One of the most legally interesting questions arising from the Code is whether “gender-based” spaces remain viable outside reliance on the single-sex exceptions.

The Code suggests that providers permitting access according to gender identity risk losing protection under the separate-sex exceptions [13.130–13.131].

Yet this leaves unresolved questions around:

• different treatment versus less favourable treatment;
• mixed-sex categorisation;
• and whether equivalent facilities may avoid actionable disadvantage.

Those issues were touched upon by Swift J in the Good Law Project v EHRC litigation concerning workplace facilities, where the Court observed that different treatment may not necessarily constitute less favourable treatment where materially equivalent provision exists. Paragraph 13.131 does not seem to be in keeping with Swift J’s statement at para 61 of that judgment, where he indicates that differential treatment is unlikely to be worse treatment for a man unable to enter a women’s toilet:

“61. Whether different treatment is also less favourable treatment is, therefore, a qualitative question. In a case where the provision of separate lavatories labelled male and female was materially similar in terms of the extent of the provision, location, and so on, I consider there would, in principle, be scope for a strong argument that a rule or practice that permitted trans women to use the “female” lavatory but required other biological men to use the male lavatory would comprise different but not less favourable treatment on grounds of sex. However, the circumstances of the case would be decisive. (For the purposes of the EA 2010 the lavatory would be mixed-sex, but for the purposes of the Claimants’ submission in this case it would still be labelled “women”.)”

That reasoning may become increasingly significant in future disputes involving:

• gender-neutral provision;
• parallel facilities;
• hybrid arrangements; and
• access models based on practical equivalence rather than formal categorisation.

The law here is unlikely to be settled.

Toilets: where operational reality collides with legal theory

The Code’s toilet provisions illustrate the practical complexity particularly clearly.

On one hand, the Code implies that where providers rely on separate-sex exceptions, facilities should operate according to biological sex [13.130–13.145].

On the other hand, paragraph 13.170 states:

“It is unlikely to be either practical or appropriate to approach any particular individual to make enquiries about their sex…” [13.170]

This paragraph is likely to become central operationally. It recognises the obvious practical difficulty: most ordinary public toilet settings are not realistically capable of intensive identity verification systems.

The Code further acknowledges: “it is not always possible to be sure of a person’s sex from their appearance.” [13.168]

This creates substantial operational and litigation questions:

• who makes decisions?
• on what evidential basis?
• following what training?
• applying what threshold?
• with what privacy safeguards?
• and with what protection against stereotyping or harassment?

The legal risk may therefore arise not merely from the policy itself, but from how the policy is implemented in practice.

The Code also indicates that it would be inappropriate to ask evidence of someone’s sex given that “sex on passports and driving licences may be changed with or without a Gender Recognition Certificate (GRC), and birth certificates may reflect the acquired gender of someone who has a GRC” [13.179].

Article 8 and privacy concerns

The Code expressly recognises that information about sex may engage Article 8 ECHR rights [13.161–13.162].

It states that requests for information about sex should only be made where: “a proportionate means of achieving a legitimate aim.” [13.162]

Further, paragraph 13.165 warns that harassment or discrimination may arise where questioning occurs in ways that are:

• public;
• humiliating;
• combative; or
• insensitive. [13.165]

These provisions are likely to become increasingly important in practice. A provider may theoretically possess a lawful policy while nevertheless implementing it unlawfully.

Indeed, in many future disputes, the real issue may not be: “Was the provider entitled to ask?” but: “How was the questioning actually conducted?”

The continuing relevance of human rights

The Code repeatedly acknowledges the continuing importance of Convention rights and the Human Rights Act. [1.18–1.20]

That is important because the Supreme Court’s decision in For Women Scotland v Scottish Ministers (FWS) did not eliminate Convention analysis.

Nor did it abolish:

• proportionality review;
• Article 8 privacy rights;
• indirect discrimination claims;
• harassment protections; or
• the requirement to balance competing rights carefully.

The accompanying Office for Equality and Opportunity’s Equality Impact Assessment also expressly acknowledges likely negative impacts on trans people.

“Our assessment is therefore that the likely impacts on gender reassignment as a characteristic are negative, in relation to each of the 3 limbs of the PSED. Mitigating factors are the ability of service providers to create ‘third-space’ provision for trans people, and the guidance in the Code on when it is, and is not, proportionate and necessary to request information on sex at birth.”

It is hard to see how this squares with the Supreme Court alleging that their interpretation of sex as ‘biological sex’ would not disadvantage trans people or reduce trans’ people’s rights, from FWS para 265:

“(xvii) The interpretation of the EA 2010 (i.e. the biological sex reading), which we conclude is the only correct one, does not cause disadvantage to trans people, with or without a GRC. In the light of case law interpreting the relevant provisions, they would be able to invoke the provisions on direct discrimination and harassment, and indirect discrimination.”

It is further unclear how the effect of the EHRC Code, which seems to essentially suggest that trans people must use a third space or the space of their birth/natal sex, does not contravene this paragraph of Goodwin, as they are essentially rendered into an ‘intermediate zone’:

“90.  Nonetheless, the very essence of the Convention is respect for human dignity and human freedom. Under Article 8 of the Convention in particular, where the notion of personal autonomy is an important principle underlying the interpretation of its guarantees, protection is given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings (see, inter alia, Pretty v. the United Kingdom, no. 2346/02, judgment of 29 April 2002, § 62, and Mikulić v. Croatia, no. 53176/99, judgment of 7 February 2002, § 53, both to be published in ECHR 2002-…). In the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved. In short, the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable. Domestic recognition of this evaluation may be found in the report of the Interdepartmental Working Group and the Court of Appeal’s judgment of Bellinger v. Bellinger (see paragraphs 50, 52-53).”

Oscar has co-written an article on the impact of FWS on our international human rights obligations here.

Conclusion

Future litigation is therefore likely to focus increasingly on:

• implementation;
• proportionality;
• dignity impacts;
• and whether particular arrangements go further than reasonably necessary.

The EHRC Code is likely to have profound practical consequences across public life.

However, despite some public commentary, the Code does not create a simple binary legal world in which every service must immediately become exclusionary or sex-segregated.

Nor does it eliminate the central role of proportionality analysis.

Indeed, the deeper one reads the Code, the clearer it becomes that proportionality remains the organising legal principle throughout:

• balancing;
• evidence;
• alternatives;
• practicality;
• context;
• and impact

all remain central to lawful decision-making.

For solicitors and advisers, the key challenge now is likely to be helping organisations navigate that balancing exercise carefully, rather than assuming the Code supplies automatic answers to every operational question.

Oscar Davies is part of the discrimination team and can advise individuals and organisations on the effect of code. Please contact their clerks here.