The Equality and Human Rights Commission (EHRC) has opened a public consultation on updates to its statutory Code of Practice for services, public functions, and associations under the Equality Act 2010, following the Supreme Court’s landmark judgment on April 16, 2025, in For Women Scotland v The Scottish Ministers.
This consultation, running from May 20, 2025, to June 30, 2025, seeks feedback on revisions to the Code to reflect the Court’s clarification that “sex” in the Equality Act refers to biological sex. This article outlines the proposed changes across the Code and specific chapters (2, 4, 5, 8, 12, and 13), and provides guidance on what to include in your consultation response to ensure the Code is clear, practical, and accessible.
Take part in The Consultation
Before you respond to the consultation or provide feedback on this chapter, read our information about the consultation (EHRC)
Fill in the survey to provide feedback for this consultation.
If you are unable to complete this survey, you can request a reasonable adjustment by:
- emailing correspondence@equalityhumanrights.com
- phoning 0161 829 8100
This consultation opened on 20 May 2025 and will close at 11:59pm on 30 June 2025.
The EHRC are opening this consultation to gather feedback on the changes they have made following the UK Supreme Court ruling in For Women Scotland. They are only consulting on parts of the code that are affected by the ruling.
Some parts of the code have not changed as a result of the UK Supreme Court’s decision and are therefore not being consulted on. Any information provided regarding parts of the code that are not being consulted on will not be considered as an official consultation response.
What Are They Consulting On?
They are consulting on the changes they have made following the UK Supreme Court ruling in For Women Scotland. On the following pages, you can read the parts of the code that they are consulting on that are new or have changed. These include changes to definitions and explanations, and new examples:
- Code of practice consultation 2025: changes that apply across the code
- Code of practice consultation 2025: changes to chapter 2
- Code of practice consultation 2025: changes to chapter 4
- Code of practice consultation 2025: changes to chapter 5
- Code of practice consultation 2025: changes to chapter 8
- Code of practice consultation 2025: changes to chapter 12
- Code of practice consultation 2025: changes to chapter 13
Any feedback provided on parts of the code that are not on these pages will not be considered an official response, but we will consider all comments in our future work.
Updated legal definition of sex
They have updated the definition of ‘legal sex’ throughout the code of practice. The previous definition explained that:
‘Legal sex is the sex that was recorded at your birth or the sex you have acquired by obtaining a Gender Recognition Certificate (GRC).’
Following the UK Supreme Court ruling in For Women Scotland, this definition is no longer accurate, because a GRC does not change your legal sex for the purposes of the Equality Act 2010. So they have therefore updated this definition throughout the code to be:
‘Legal sex is the sex that was recorded at your birth.’
Chapter 2
This page is part of their consultation on the code of practice for services, public functions and associations. They previously consulted on this code of practice between 2 October 2024 and 3 January 2025. They are opening another consultation on the code to gather feedback on changes made following the UK Supreme Court ruling on 16 April 2025 in For Women Scotland Ltd v The Scottish Ministers (For Women Scotland).
Change 2.1: New content on Gender Recognition Certificates
This content explains that the Supreme Court in For Women Scotland has ruled that a Gender Recognition Certificate (GRC) does not change a person’s legal sex for the purposes of the Equality Act 2010. It also outlines what protections trans people have under the Act whether or not they have a GRC.
Paragraphs 2.1.1 to 2.1.5 are included in context for this change. Feedback only on paragraphs 2.1.6 to 2.1.9.
Gender Recognition Certificates:
2.1.6 The Supreme Court in For Women Scotland Ltd v The Scottish Ministers (For Women Scotland) [2025] UKSC 16 has ruled that a GRC does not change a person’s legal sex for the purposes of the Equality Act 2010.
2.1.7 This means that, in relation to the Act, a person’s sex remains their biological sex, whether they have a GRC or not. This is also referred to as ‘sex at birth’ or ‘birth sex’ in this code. For example, a trans man with a GRC is a woman and a trans woman with a GRC is a man, for the purposes of the Act.
2.1.8 A trans person will be protected from discrimination because of gender reassignment, whether they have a GRC or not.
2.1.9 A trans person will also be protected from sex discrimination whether they have a GRC or not. They will be protected from sex discrimination that is based on their birth sex. They will also be protected from sex discrimination related to their acquired gender where they suffer:
- direct discrimination by association or where this is because of their perceived sex in their acquired gender (read about discrimination by perception in the changes to chapter 4)
- indirect discrimination by association (s.19A) of the Act
- harassment related to sex (s.26) (read about harassment related to sex in the changes to chapter 8)
Chapter 4
Chapter 4 explains what the Equality Act 2010 (the Act) says about direct discrimination in the provision of services, the exercise of public functions and associations for all the protected characteristics covered by this code of practice. The changes to this chapter that they are consulting on are in the following sections.
Change 4.1: New example on sex discrimination by perception
This example explains how discrimination can occur based on a perceived protected characteristic, in the context of sex and gender reassignment. We are looking for feedback on the example in paragraph 4.1.3.
Updated content Discrimination by perception
4.1.1 It is direct discrimination if service providers, those exercising public functions or associations treat an individual less favourably because the service providers, those exercising public functions or associations perceive that the individual has a protected characteristic even if they do not. However, this does not apply to the protected characteristic of pregnancy and maternity.
Change 4.2: Removed reference to superseded caselaw
We removed content that explained that, for trans men holding a Gender Recognition Certificate (GRC), the protection from pregnancy and maternity discrimination under the Equality Act 2010 (the Act) arose from case law. This case law set out that trans men were still protected irrespective of them having a GRC that stated that their legal sex was male. Following the For Women Scotland ruling, their legal sex is now female for the purposes of the Act, and they therefore have protection on that basis.
Updated content Discrimination because of pregnancy and maternity
4.2.1 The Act provides protection against discrimination because of pregnancy and maternity in the provision of services, the exercise of public functions and in associations (s.17).
4.2.2 When explaining these provisions, we use the same language as the Act, which refers to discrimination against women on the grounds of pregnancy and maternity. The pregnancy and maternity provisions in the Act apply on the basis of biological sex and so trans men are included in the protections against discrimination provided by these provisions.
Chapter 5
Chapter 5 is about indirect discrimination and ‘objective justification’. Objective justification applies to indirect discrimination, discrimination arising from disability, positive action and to some of the exceptions permitted by the Equality Act 2010 (s.19). We have included the changes to this chapter that we are consulting on in the following sections.
Change 5.1: New example on sex discrimination – same disadvantage
This example explains how indirect sex discrimination can occur when people experience the same disadvantage, even if they do not share the same protected characteristic. The example is in the context of sex and gender reassignment.
We have included additional information to provide context for this example. We are only looking for feedback on the example in paragraph 5.1.3.
Indirect discrimination: same disadvantage
Chapter 8
Chapter 8 explains the general test for harassment under the Equality Act 2010. It also explains the provisions on harassment related to a relevant protected characteristic, the provisions on sexual harassment and the provisions on less favourable treatment of people who reject or submit to harassment. We have included the changes to this chapter that we are consulting on in the following sections.
Change 8.1: Updated example on harassment related to sex
We produced a new example to explain how harassment can occur based on a perceived protected characteristic, in the context of sex and gender reassignment.
We have included additional information to provide context for this example. We are only looking for feedback on the example in paragraph 8.1.6b.
8.1.6 An individual does not have to possess the relevant protected characteristic themselves for protection from harassment to arise. This can happen in several different situations.
b. An individual may be wrongly perceived as having a particular protected characteristic.
Chapter 12
Chapter 12 explains how the Equality Act 2010 (the Act) (Part 7) applies to associations. It explains what an association is and what is unlawful under the Act in relation to an association’s members, associates, guests, those seeking to be members or guests, former members, former associates and former guests. It also explains the duty of an association to make reasonable adjustments. We have included the changes to this chapter that we are consulting on in the following sections.
Change 12.1: New example on women-only associations
The example in this section explains when applications to an association can be lawfully refused based on a protected characteristic, in the context of sex and gender reassignment. We have included additional information to provide context for this example. We are only looking for feedback on the example in 12.1.3.
Associations may restrict membership to persons who share a protected characteristic
Chapter 13
The Equality Act 2010 (the Act) contains exceptions which permit conduct that would otherwise be unlawful under the Act in the provision of services, the exercise of public functions and the activities of associations. Chapter 13 explains those exceptions. We have included the changes to this chapter that we are consulting on in the following sections.
Change 13.1: Updated section on competitive sport
This section has been updated to explain the circumstances in which it may be lawful to exclude participation in competitive sporting events in relation to the protected characteristics of sex and gender reassignment. It also sets out considerations that should factor into policy decisions regarding the exclusion of trans people from competitive sporting events.
Competitive sport
13.1.1 The Act includes four types of exceptions that may apply in relation to the participation of a competitor in a sport, game or other activity of a competitive nature (s.195). These relate to sex, gender reassignment, nationality or birthplace, and age.
Competitive sport – sex
13.1.2 It is not a breach of the Act for a person to organise single-sex or separate-sex events for male and female competitors in a sport, game or other activity of a competitive nature in specific circumstances (s.195(1) and (3)). These circumstances are where an average person of one sex would be at a disadvantage as a competitor against an average person of the other sex due to their physical strength, stamina or physique (referred to in the Act as a ‘gender-affected activity’). Where there is no disadvantage due to these factors, organising single-sex or separate-sex events may be unlawful sex discrimination.
13.1.4 This exception also applies to children’s sport (s.195(4)). However, organisers must consider whether there are significant differences in physical strength, stamina or physique at the age and stage of development of the children competing in the activity.
Competitive sport – gender reassignment
13.1.6 In the context of a gender-affected activity (read paragraph 13.1.2), the Act allows trans people to be excluded from an event or treated differently, which would otherwise constitute unlawful gender reassignment discrimination, when necessary for reasons of safety or fair competition. If it is not necessary for these reasons, it is likely to be unlawful to exclude trans people.
13.1.7 Consequently, if a person is organising single-sex or separate-sex events for men and women in a gender-affected activity, they should consider their approach to trans competitors’ access to the service (s.19 and s.195(2)).
13.1.8 Direct gender reassignment discrimination can occur if a policy or decision to restrict participation of trans people is made on the grounds of gender reassignment.
13.1.9 This would be the case, for example, if a trans man, who is a woman under the Act, is excluded from a women’s event because of his gender reassignment characteristic. Read our changes to chapter 2 for more information on the meaning of gender reassignment.
13.1.10 Indirect gender reassignment discrimination can occur if a provision, criterion or practice puts trans people (including the individual trans person concerned) at a particular disadvantage compared to people who are not trans and it cannot be justified.
13.1.11 However, in the context of a gender-affected activity, the Act provides an exception to a claim of gender reassignment discrimination if a person restricts participation of a trans person in a gender-affected activity and can show it is necessary to do so for reasons of fair competition or the safety of competitors (s.195(2)).
13.1.12 This means that organisers can prevent trans people from participating in a gender-affected sporting activity if it is necessary to do so because their participation would create a competitive advantage or disadvantage, or would potentially endanger their own safety or that of other participants.
13.1.14 In some circumstances, limiting, modifying or excluding the participation of trans people for the reasons of fair competition or safety may be necessary to avoid discrimination against other competitors. Section 195(1) provides organisers of separate sporting events for men and women with an exception for sex discrimination when providing separate men’s and women’s events. The law on the interpretation of this provision is not settled and there is therefore uncertainty as to how this provision applies.
13.1.15 Section 195(1) is likely to only apply where a person has decided to organise the gender-affected activity as a single-sex or separate-sex event. A claim of direct or indirect sex discrimination cannot be brought about the participation of a person in an event which has been organised as a single-sex or separate-sex event.
13.1.16 Where an organiser chooses to offer a mixed-sex gender-affected activity, then this activity is not protected by the exception in section 195(1) and participants may bring claims of direct and indirect sex discrimination about it.
13.1.18 Given the physiological differences between men and women, it will often be necessary for organisations to develop general policies to guide and inform their decision making in this area. Policies should be supported by a clear rationale and evidence base, and will often wish to draw upon guidance from sporting authorities. Relevant factors may include:
- whether an activity is primarily competitive, or competitive but with a significant social and recreational purpose, and whether it is a mass participation event
- whether there are safety risk factors such as those arising from physical contact between men and women
- the extent to which there are competitive advantages arising from sex-based physiological factors such as physical strength, stamina or physique
- whether such competitive advantage can be sufficiently reduced through medical intervention, such as drugs to reduce levels of testosterone, to make the competition fair
Change 13.2: Updated section on separate and single-sex services for men and women
This section has been updated to provide guidance on how separate or single-sex services can be provided for men and women. It also sets out when providing these services is likely to be lawful.
Updated content Services for particular groups
13.2.1 The Act contains specific exceptions (discussed in this section) which allow service providers and, in certain cases, those exercising public functions (s.31(3)), to provide services:
- separately and / or differently for women and men
- exclusively for women
- exclusively for men
- to people of a particular age group (in certain circumstances)
13.2.2 If a service is generally provided only for persons who share a protected characteristic, a person who normally provides that service can (Sch 3 paragraph 30):
- insist on providing it in a way they normally provide it
- refuse to provide the service to people who do not share that protected characteristic, if they reasonably think it is impracticable to provide it
Separate services for women and men
13.2.3 The Act (Sch 3 paragraph 26(1)) does not prohibit sex discrimination where a service provider (including a person providing a service in the exercise of public functions (s.31(3)) offers separate services for men and women in specific circumstances. It is lawful to provide separate-sex services if:
- a joint service for women and men would be less effective, and
- providing the service separately to women and men is a proportionate means of achieving a legitimate aim
13.2.4 If these conditions do not apply, the provision of separate-sex services is likely to be unlawful sex discrimination.
13.2.5 The Act (Sch 3 paragraph 26(2)) also does not prohibit sex discrimination where a service provider (including a person providing a service in the exercise of public functions) provides separate services for each sex in a different way, if:
- a joint service for persons of both sexes would be less effective, or
- the extent to which the service is required by one sex makes it not reasonably practicable to provide the service other than separately and differently for each sex, and
- the limited provision of the service is a proportionate means of achieving a legitimate aim
13.2.7 The Act (Sch 3 paragraph 26(3)) also does not prohibit sex discrimination where a service provider (including a person providing a service in the exercise of public functions) does anything in relation to the provision of separate services, or services provided differently for women and men, for the reasons set out in paragraph 13.2.5.
13.2.9 Read paragraphs 13.3.1 to 13.3.20 for the considerations relevant to whether a separate-sex service, or anything done in relation to it, is a proportionate means of achieving a legitimate aim.
Single-sex services
13.2.10 The Act (Sch 3 paragraph 27) does not prohibit sex discrimination where a service provider (including a person providing a service in the exercise of public functions) provides a service exclusively to one sex, if doing so is a proportionate means of achieving a legitimate aim and at least one of the conditions in paragraphs 13.99 to 13.109 applies.
13.2.11 Condition 1: Only people of that sex need the service.
13.2.12 Condition 2: A service that is provided jointly for both sexes is not sufficiently effective without providing an additional service exclusively for one sex.
13.2.14 Condition 3: A service provided for men and women jointly would not be as effective, and the demand for the services makes it not reasonably practicable to provide separate services for each sex.
13.2.16 Condition 4: The service is provided at a hospital or other place where users need special care, supervision or attention.
13.2.18 Condition 5: The service is for, or is likely to be used by, more than one person at the same time and a woman might reasonably object to the presence of a man, or vice versa.
It is likely to be reasonable for a woman to object to the presence of a man if she will be getting undressed or in a vulnerable situation when she is using the service.
13.2.20 Condition 6: The service is likely to involve physical contact between the service user and another person and that other person might reasonably object if the service user is of the opposite sex.
In this condition, limited and non-intimate physical contact is unlikely to justify single-sex provision. For instance, the fact that in first aid training there may be some physical contact between participants in the classes is unlikely to warrant the provision of single-sex sessions.
13.2.22 Where a service provider (including a person providing a service in the exercise of public functions) does anything in relation to the provision of single-sex services, this will be lawful provided that one of conditions 1 to 6 is met, and that providing the service on a single-sex basis is a proportionate means of achieving a legitimate aim.
13.2.23 Read paragraphs 13.3.1 to 13.3.20 for the considerations relevant to whether a single-sex service, or anything done in relation to it, is a proportionate means of achieving a legitimate aim.
Change 13.3: New section on justification for separate and single-sex services
This section sets out the considerations that should be given to all potential service users when deciding whether separate and single-sex services are a proportionate means of achieving a legitimate aim. It also sets out circumstances in which mixed-sex services may be necessary, and the potential legal implications of providing only mixed-sex services.
Updated content
13.3.1 When providing a separate or single-sex service, a service provider (including a person providing a service in the exercise of public functions) must be able to demonstrate that doing so is a proportionate means of achieving a legitimate aim.
13.3.2 An example of a legitimate aim for providing a separate or single-sex service could be ensuring the safety of women or the privacy and dignity of women and / or men. The service provider (including a person providing a service in the exercise of public functions) must show that providing the service only to one sex or separately to both sexes is a proportionate way to achieve the aim.
13.3.3 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:
- the benefits of offering the service as a separate or single-sex service, and
- the needs of those who are accessing it, and
- the impact on those who are excluded from accessing it
13.3.4 When considering the benefits of offering a separate or single-sex service, the service provider (including a person providing a service in the exercise of public functions) should think about whether women’s safety, privacy and / or dignity would be at risk in the service if it was shared with men.
Taking the example of offering a single-sex service for women, the service provider should consider factors such as:
- whether women are likely to be in a state of undress
- whether there will be limited ability for women to leave or to choose an alternative service
- whether the service is provided a result of, or connected with, male violence against women
- whether the physical differences between men and women are relevant to the experience of the service and put women at a particular disadvantage
Where factors like these are present, the benefits of offering a separate or single-sex service will be likely to outweigh other considerations in the balancing exercise.
13.3.5 The needs of potential service users include the specific needs of people with different protected characteristics, such as older people, disabled people and those who observe particular religious practices. For example, Muslim people may have a particular need for separate-sex services to observe the requirements of their faith.
13.3.7 The impact on those who will be excluded from the service includes both the impact on people of the opposite biological sex generally and the particular impact on trans people of the opposite biological sex. In separate or single-sex services, a trans man will be excluded from the men-only service because his biological sex is female, and a trans woman will be excluded from the women-only service because her biological sex is male. Trans people are likely to be disadvantaged by this, by comparison to people who are not trans.
13.3.8 The service provider (or person providing a service in the exercise of public functions) should consider whether the disadvantage to trans people, and any other people who may be disadvantaged, outweighs the benefits of achieving the legitimate aim. They should also consider whether there is a less intrusive option than excluding trans people which would be proportionate (read 13.4.4 to 13.4.8).
13.3.9 Having carried out this balancing exercise, the service provider (including a person providing a service in the exercise of public functions) may conclude that arrangements or adaptions can be made to meet the needs of all service users, or that it remains proportionate to maintain only a separate or single-sex service.
13.3.10 In many cases, it will be proportionate to take a holistic approach to service provision by providing a mix of services which may include both separate or single-sex services and mixed-sex services. The mix of services in terms of the size of the separate or single-sex services and of the mixed-sex services should reflect the needs and relative numbers of service users with different needs.
13.3.14 However, it may be that offering alternative arrangements is not reasonably possible for the service provider (including a person providing a service in the exercise of public functions) or that doing so would undermine the service that is being provided. This may be because of the type of service being provided, the needs of the service users, the physical constraints of any building, or because of the disproportionate financial costs associated with making those arrangements.
13.3.18 It is good practice to record the reasons why a decision has been taken to provide or not to provide a separate or single-sex service, along with any supporting evidence.
13.3.19 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 biological sex, then it can no longer rely on the exceptions set out at paragraphs 13.2.3 to 13.2.22. 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 Act. 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.
13.3.20 Similarly, if a service provider (including a person providing a service in the exercise of public functions) decides only to provide a service on a mixed-sex basis, without any separate or single-sex option, this could be direct or indirect sex discrimination against women who use the service or lead to unlawful harassment against them. This is most likely in contexts like those referred to in paragraph 13.3.4.
Change 13.4: New content on policies and exceptions for separate and single-sex services
This new content explains that service providers may need to develop policies regarding the provision of separate or single-sex services. It also covers specific circumstances that may require a different approach to that set out in policy, and examples of those circumstances.
Updated content Policies and exceptions for separate and single-sex services
13.4.1 It will usually be helpful and often necessary for service providers (including a person providing a service in the exercise of public functions) to have a policy setting out whether, and if so how, separate or single-sex services will be provided. When developing a policy, the service provider should consider how the policy should apply in different circumstances to ensure appropriate consideration of all affected interests and provide transparency for service users.
13.4.2 However, individual circumstances may, exceptionally, require a different approach to that set out in a policy. The law in this area is complex, and it is not certain that it is permissible to make exceptions to allow people of the opposite sex to use a separate or single-sex service. It is likely, however, that this will be permissible if doing so adds a necessary flexibility without undermining the aim of the service and / or contributes towards achieving the aim.
13.4.4 In most situations, when a potential service user wishes to access a single-sex service for the opposite biological sex, the service provider (including a person providing a service in the exercise of public functions) should consider whether it can accommodate the needs of the service user in a way which achieves a fair balance without compromising the single-sex nature of the service.
13.4.5 The service provider (including a person providing a service in the exercise of public functions) should consider whether it can offer a separate service to that individual and others in similar circumstances. If it is possible to do so, the service will remain a single or separate-sex service, with an additional separate service for those that share that individual’s circumstances.
13.4.6 For example, if a leisure centre offers women-only water aerobics sessions, and it is approached by a man who would like to access the service, the leisure centre should consider whether it could offer a water aerobics session that is also open to men at a different time or on a different day. If it is possible to do so, the service would remain a separate or single-sex service, but with an additional separate service that is also open to men.
13.4.7 Another example of a less intrusive measure would be adapting a service to enable the service to be used by people of both sexes. For example, it may be possible to offer toilets in individual lockable rooms to be used by both sexes.
13.4.8 It may be that offering alternative arrangements is not reasonably possible for the service provider (or person providing a service in the exercise of public functions) or that doing so would undermine the service that is being provided. This may be because of the type of service being provided, the needs of the service users, the physical constraints of any building, or because of the disproportionate financial costs associated with making those arrangements. The service provider may take account of the fact that if it admits the individual it may cease to be a separate or single-sex service (read paragraph 13.3.19).
Change 13.5: Updated section on separate or single-sex services in relation to gender reassignment
This section explains that service providers should consider their approach to trans people’s use of their services when deciding whether to provide a separate or single-sex service. It includes examples of relevant considerations when deciding whether the exclusion of trans people from a separate or single-sex service is a proportionate means of achieving a legitimate aim.
Updated content Separate or single-sex services – gender reassignment
13.5.1 If a service provider (including a person providing a service in the exercise of public functions) is considering providing a separate or single-sex service, they should consider their approach to trans people’s use of the service.
13.5.2 The impact of separate or single-sex services on trans people should be considered when the service provider is deciding whether it is justified to have a separate or single-sex service in the first place. Read paragraphs 13.3.8 to 13.3.20 for further information on this.
13.5.3 If a service provider (including a person providing a service in the exercise of public functions) decides to have a separate or single-sex service and allows trans people to use the service intended for the opposite biological sex, the service will no longer be a separate or single-sex service under the Act. It is also very likely to amount to unlawful discrimination against others (read paragraph 13.3.19).
13.5.4 If it is justified to provide a separate or single-sex service, then it will not be unlawful discrimination because of gender reassignment to prevent, limit or modify trans people’s access to the service for their own biological sex, as long as doing so is a proportionate means of achieving a legitimate aim (Sch 3 paragraph 28).
13.5.5 For example, a trans man might be excluded from the women-only service if the service provider decides that, because he presents as a man, other service users could reasonably object to his presence, and it is a proportionate means of achieving a legitimate aim to exclude him.
13.5.6 A legitimate aim for excluding a trans person from a separate or single-sex service for their own biological sex might be to prevent alarm or distress for other service users. Whether it is reasonable to think that the presence in that service of the trans person will cause alarm or distress will depend on all the circumstances, including the extent to which the trans person presents as the opposite sex. For this reason, a service provider (including a person providing a service in the exercise of public functions) should only consider doing this on a case-by-case basis.
13.5.7 The service provider should consider whether there is a suitable alternative service for the trans person to use. In the case of services which are necessary for everybody, such as toilets, it is very unlikely to be proportionate to put a trans person in a position where there is no service that they are allowed to use.
13.5.8 If the service provider does not act proportionately, this is very likely to amount to direct or indirect discrimination because of gender reassignment (s.13 and s.19).
13.5.10 If the nature of a service means that it is only, or generally, used by women or by men, this does not mean that it is necessarily a separate or single-sex service under the Act. A service like this does not need to operate according to the rules and principles described in paragraphs 13.2.10 to 13.5.9. However, the Act (Sch 3 paragraph 30) contains a different exception which means that, in services of this sort, it will not be unlawful discrimination if the service provider refuses to serve a person of the opposite sex, if it would be impracticable to provide the service to that person. The service provider can also refuse to adjust the way in which the service is provided to cater for a person of the opposite sex. This exception applies to all protected characteristics in the Act, not just sex.
Change 13.6: Updated content on communal accommodation
This content explains the application of the Act to communal accommodation in respect of the protected characteristics of sex and gender reassignment.
Updated content
13.6.1 The Act does not prohibit sex discrimination or gender reassignment discrimination where a person does anything in relation to admitting persons to communal accommodation, or providing any benefit, facility or service linked to the accommodation (Sch 23 paragraph 3(1)). This exception applies if the criteria set out in paragraphs 13.154 to 13.156 are satisfied.
13.6.2 ‘Communal accommodation’ is residential accommodation which includes dormitories or other shared sleeping accommodation which, for reasons of privacy, should be used only by persons of the same sex (Sch 23 paragraph 3(5) to (6)). It can also include:
- shared sleeping accommodation for men and for women
- ordinary sleeping accommodation
- residential accommodation, all or part of which should only be used by persons of the same sex because of the nature of the sanitary facilities serving the accommodation
13.6.3 A benefit, facility or service is linked to communal accommodation if it cannot be properly and effectively provided except to those using the accommodation. It can only be refused to a person if they can lawfully be refused use of the accommodation (Sch 23 paragraph 3(7)).
13.6.4 This exception only applies if the communal accommodation is managed in a way that is as fair as possible to both women and men (Sch 23 paragraph 3(2)).
13.6.5 When excluding a person from use of communal accommodation because of sex or gender reassignment, the service provider, person exercising public functions or association must consider:
- whether and how far it is reasonable to expect that the accommodation should be altered or extended or that further accommodation should be provided, and
- the relative frequency of demand for the accommodation by persons of each sex (Sch 23 paragraph 3(3))
13.6.6 Excluding a person from use of communal accommodation provided for their own biological sex because of gender reassignment will only be lawful if it is a proportionate means of achieving a legitimate aim (Sch 23 paragraph 3(4)). The matters which a service provider, person exercising public functions or association should consider are similar to those set out in paragraphs 13.122 to 13.150.
Any feedback provided on parts of the code that are not on these pages will not be considered an official response, but we will consider all comments in our future work.
You will be able to reference specific sections when you complete the survey.