Introduction
The Equality and Human Rights Commission’s updated Draft Code of Practice for Services has now been laid before Parliament. Although the Code applies formally to service providers rather than employers, its implications reach far wider. In a political climate where questions of sex, gender, and rights are often weaponised, the Code attempts something unfashionable: clarity.
This article explores what the Code says, why it matters, and how a recent tribunal case — LS v NHS England (2026) — illustrates the legal principles in practice.
What the Draft Code Is — and Isn’t
The Code provides guidance on how the Equality Act 2010 applies to:
- Service providers
- Public functions
- Associations
It does not apply to employers (yet), though the EHRC has confirmed that updated employer guidance is forthcoming.
A statutory code — but not law
The Code is issued under section 14 of the Equality Act 2006. This means:
- It is not itself law
- Courts and tribunals must take it into account where relevant
- It carries significant persuasive authority
- It explains the law; it does not create new legal obligations
This distinction matters. The Code is a tool for clarity, not a vehicle for policy‑making.
Why the update?
The new draft incorporates over a decade of legal developments, including:
- The Marriage (Same Sex Couples) Act 2013
- Case law refining the definition of disability
- Case law clarifying the threshold for philosophical belief protection
- The Supreme Court’s ruling in For Women Scotland v Scottish Ministers (2025)
The definition of “sex”
In For Women Scotland, the Supreme Court held that, for the purposes of the Equality Act, “sex” refers to biological sex, not self‑identified gender. The EHRC explicitly cites this judgment as a reason for updating the Code.
This is foundational. It anchors the Code’s approach to single‑sex services in biological reality, not self‑identification.
Single‑Sex Services: What the Code Clarifies
Under Schedule 3 of the Equality Act, organisations may lawfully provide:
- Single‑sex services
- Separate‑sex services
- Mixed‑sex services
The updated Code expands guidance on how to determine whether a single‑sex service is proportionate and justifiable.
The EHRC recommends that organisations:
- Record their reasoning for providing (or not providing) a single‑sex service
- Maintain a clear policy on how single‑sex services will be delivered
- Consider the impact on all protected groups, not just one
- Ensure decisions are evidence‑based, not ideological
Parliament now has 40 days to consider the Code. If no objection is raised, it will come into force.
Why This Matters for Employers Too
Although the Code is aimed at service providers, the principles inevitably spill over into employment contexts — especially around:
- Toilets
- Changing rooms
- Accommodation
- Privacy‑sensitive facilities
Employers will need to conduct the same kind of balancing exercises the Code describes. The EHRC has already said employer‑specific guidance is on the way.
Case Study: LS v NHS England (2026)
A recent employment tribunal judgment provides a real‑world example of how these principles apply.
The Facts
The employer had a policy allowing trans women to use female‑only facilities. The claimant — a female Muslim employee — objected and brought claims of:
- Indirect sex discrimination
- Indirect religious discrimination
- Disability discrimination
- Harassment related to sex
- Harassment related to philosophical belief (gender‑critical)
The Tribunal’s Key Findings
The tribunal held that:
1. The policy amounted to indirect sex discrimination
Women, and particularly Muslim women, were placed at a disadvantage. Less discriminatory alternatives existed — such as providing alternative or gender‑neutral facilities for trans staff.
2. The policy amounted to harassment
The claimant’s gender‑critical belief is protected under the Equality Act. The employer’s approach created an environment that violated her dignity.
3. The employer’s balancing exercise was inadequate
The organisation consulted:
- LGBT networks
- Disability networks
- BAME networks
But did not consult women’s networks or faith‑based groups.
This selective consultation was fatal to the policy’s legality.
4. The decision is not binding
As a first‑instance judgment, it does not create precedent. But it aligns with a growing body of case law emphasising the need for careful, documented balancing.
The Principle: Balance, Not Ideology
The Equality Act protects both:
- Sex
- Gender reassignment
Neither characteristic automatically overrides the other. The law requires proportionality, not absolutism.
Single‑sex spaces exist for reasons of:
- Privacy
- Dignity
- Safety
- Cultural and religious observance
They are not acts of exclusion but of legitimate protection.
The tribunal’s criticism of NHS England is instructive: You cannot claim to balance rights if you only listen to one side.
Reactions: A Divided Landscape
The updated Code has prompted strong reactions across the political and organisational spectrum.
EHRC’s position
The EHRC has framed the Code as:
- A neutral, legally grounded document
- A tool to help organisations navigate competing rights
- A response to significant legal developments, not a political intervention
The Commission emphasises that clarity benefits everyone — service providers, users, and courts.
Women’s and gender‑critical groups
Many women’s organisations and gender‑critical campaigners have welcomed:
- The reaffirmation of biological sex in law
- Stronger guidance on lawful single‑sex services
- The emphasis on documentation and proportionality
They argue that the Code restores confidence in the Equality Act’s original intent.
LGBT and trans‑advocacy organisations
Some LGBT groups have expressed concern that:
- The Code may lead to more exclusion of trans people from services
- Providers may adopt over‑cautious or restrictive policies
- The emphasis on biological sex could undermine existing inclusion practices
They have called for close monitoring of how the Code is applied in practice.
Employers and unions
Many employers and unions are seeking:
- Clearer guidance on workplace facilities
- Practical examples of lawful policies
- Support in conducting balancing exercises that respect all protected groups
The LS v NHS England case has sharpened awareness of the risks of incomplete consultation.
What Organisations Must Do
Whether you are a service provider or employer, the message is clear:
1. Document your reasoning
If challenged, you must show your decision‑making process.
2. Consult widely
Not just LGBT groups — but women’s groups, faith groups, and others affected.
3. Provide alternatives
Gender‑neutral facilities can reduce conflict without undermining single‑sex provision.
4. Respect philosophical belief
Gender‑critical views are protected under the Equality Act.
5. Avoid blanket policies
The law requires case‑by‑case proportionality, not ideological commitments.
A Moment for Clarity
The EHRC’s draft Code is not a political statement. It is an attempt to bring legal clarity to a highly contested area.
In a debate often dominated by slogans, the Code insists on:
- Evidence
- Reasoning
- Documentation
- Balance
That alone makes it significant.
Conclusion
The updated EHRC Code and the LS v NHS England judgment together mark a shift toward greater legal clarity on single‑sex spaces. They reaffirm that equality is not achieved by erasing difference but by recognising it responsibly.
For unions, employers, and service providers, the task is to apply these principles with care — balancing rights, consulting widely, and documenting decisions. In doing so, they uphold not only the law but the deeper principle of fairness that underpins it.
By Maria Camara
