Key documents:
- Equality Act 2010: Draft Code of Practice for services, public functions and associations, 2026
- Government press release
At present, the Code remains in draft form and is subject to Parliamentary scrutiny. Members of Parliament and peers have a period of 40 days in which to raise concerns. If no objections are made during that period, the Code is expected to come into force in England, Scotland and Wales as a statutory Code of Practice. This means that, while it would not create new legal obligations, it would carry enhanced status in legal proceedings and it would be taken into account by courts and tribunals when interpreting the Equality Act 2010 (“the Equality Act”).
It is also important to note that this Code applies to service provision. The EHRC’s Employment Code has not yet been updated, and organisations will therefore need to take care to distinguish between obligations owed to employees and those owed to service users.
Status and scope of the Code
The draft Code applies across England, Scotland and Wales and is designed to assist service providers in complying with the Equality Act. It addresses the full range of protected characteristics, including sex, gender reassignment and issues relating to Gender Recognition Certificates.
The Code also highlights practical steps that service providers may take to reduce the likelihood of legal challenge, such as putting in place clear policies, training staff and recording the rationale for key decisions.
A central theme is that organisations are expected to take a structured and evidence-based approach when decisions affect different groups in different ways.
Separate and single-sex services: The legal framework
One area likely to be of particular interest to clients is the treatment of separate and single-sex services, including toilets and changing facilities.
The Code reiterates the position under the Equality Act that it is lawful to provide separate services for women and men where:
- a joint service would be less effective; and
- providing separate services is a proportionate means of achieving a legitimate aim.
In the context of toilets and changing facilities, these statutory exceptions allow service providers to offer and maintain separate or single-sex spaces where this is justified, provided the decision is a proportionate way of achieving a legitimate aim (for example, privacy or safety). Where these conditions are met, restricting access to such facilities by reference to sex will not amount to unlawful discrimination.
These provisions are not new, but the Code provides more detailed guidance on how they should be applied in practice, particularly in the context of competing rights and interests.
Taking a proportionate and balanced approach
The Code places considerable emphasis on the need for a balancing exercise. Service providers are expected to consider:
- the intended aim of the service;
- the potential disadvantage to individuals who may be excluded; and
- whether there are less intrusive ways of achieving the same outcome.
The Code recognises that trans people are likely to experience disadvantage in the context of separate or single-sex services and confirms that this must be taken into account as part of the assessment. However, it also makes clear that service providers may lawfully maintain such services where, following careful consideration, doing so is proportionate.
In some cases, a “mixed model” of service provision may be appropriate, combining single-sex services with mixed-sex or gender-neutral options.
Toilets, changing facilities and practical solutions
The guidance on toilets and changing facilities is likely to be a key area of focus for many organisations.
The Code reflects the Supreme Court’s decision in For Women Scotland v Scottish Ministers (2025), which confirmed that references to “sex” in the Equality Act 2010 are to biological sex. In practice, this underpins the approach taken in the Code to single-sex services, including toilets and changing facilities, and reinforces the need for service providers to be clear about how such spaces are defined and operated when relying on the statutory exceptions.
This means that where a service provider lawfully provides facilities on a single-sex basis (for example, women’s toilets or changing rooms), access must generally be determined by reference to sex in order for the service to remain a single-sex service for the purposes of the Equality Act, subject to any proportionate alternative arrangements that may be put in place.
The Code explains that if a service provider chooses to admit individuals into a service intended for the opposite sex, it may no longer be able to rely on the statutory exceptions for single-sex services. This highlights the importance of clarity and consistency in how facilities are categorised and operated.
At the same time, the Code encourages service providers to consider alternative or supplementary arrangements where possible. Examples include:
- providing additional or alternative sessions or facilities;
- adapting spaces so they can be used by all individuals, for example by installing individual lockable cubicles; and
- offering a combination of single-sex and mixed-sex facilities.
The appropriate approach will depend on the nature of the service, the needs of users, and practical considerations such as space and cost.
Decision-making and governance
A consistent message throughout the Code is the importance of clear governance.
In particular:
- organisations are encouraged to develop policies setting out whether and how single-sex services will be provided;
- some flexibility may be required to respond to individual circumstances; and
- it is good practice to record the reasons for decisions and any supporting evidence.
This reflects the broader legal expectation that decisions must be reasoned, proportionate and capable of justification.
Gender reassignment considerations
The Code also addresses how the Equality Act provisions relating to gender reassignment apply in this context.
It confirms that it may be lawful, in certain circumstances, to limit or modify access to single-sex services where this is a proportionate means of achieving a legitimate aim. However, this will depend on the specific facts and must be considered carefully in each case.
A key point is that it is very unlikely to be proportionate to leave an individual without access to any appropriate facility, particularly where the service is essential, such as toilets. Where alternative arrangements are possible, these should be considered as part of the overall assessment.
Failure to take a proportionate approach may give rise to claims of direct or indirect discrimination under the Equality Act.
Interaction with the Equality Act
If the Code is approved following the 40-day Parliamentary scrutiny period, it will become a statutory Code of Practice. In practical terms, this strengthens its status: courts and tribunals will be required to take it into account where relevant. However, it will not override the Equality Act itself, and organisations must continue to apply the law to their specific circumstances.
Conclusion
The updated draft Code provides additional clarity on how the Equality Act may apply to service provision, particularly in relation to single-sex spaces such as toilets and changing facilities. However, it does not remove the need for careful, fact-specific decision-making.
Organisations should consider reviewing existing policies, documenting their reasoning and ensuring that they are taking a balanced and proportionate approach to competing rights. In practice, balancing different protected characteristics and service user needs can be complex, and while the Code provides helpful guidance, it does not offer a single solution for every scenario. Service providers will need to take a reasonable and practical approach in light of their particular circumstances, including operational and cost considerations.
Ultimately, while the Code will become an important interpretative tool (subject to Parliamentary approval), compliance will continue to be assessed against the Equality Act 2010 and the specific context in which services are provided.
