The draft code has been updated to take account of the Supreme Court’s ruling that, for the purposes of the Equality Act 2010, sex means biological sex and trans people are protected by the Act under the protected characteristic of gender reassignment, For Women Scotland v The Scottish Ministers [2025] UKSC 16.
Other changes include protections for women whose menopause has a significant impact on their everyday life; updates to reflect legislative changes on same-sex marriage; and clarification that women who breastfeed are also protected from harassment.
Minister for women and equalities Bridget Phillipson said: ‘Organisations should continue to follow the law as clarified by the Supreme Court, taking specialist legal advice if needed.
‘The draft Code gives organisations clear, workable guidance which will enable them to take a pragmatic approach to protecting and serving the needs of our society. Following EHRC’s consultation with a range of services, the draft Code supports providers in ensuring they can make practical, and ultimately sensible decisions for every day scenarios, such as toilet provision.’
Lui Asquith, associate at Russell-Cooke, said: ‘While the code itself is not law, its practical impact should not be underestimated—courts and tribunals will be required to take it into account and it is likely to shape how the Equality Act 2010 is interpreted in key areas, particularly in relation to the exercise of rights by trans people and those with gender-critical beliefs. That said, its scope is limited and uncertainty will remain, as it always has in equality law.
‘Balancing competing rights has never been straightforward in practice and the legal landscape will continue to be complex. Claims that the position is now clear-cut should be treated with due scepticism.’
