Background
The Supreme Court’s judgment in the case of For Women Scotland Ltd v Scottish Ministers [2025] UKSC 16 clarified the interpretation of the terms ‘sex’, ‘woman’ and ‘man’ under the Equality Act 2010 (the EqA). The court held that these terms refer to biological sex rather than ‘certificated sex’ under the Gender Recognition Act 2004. Therefore, differential treatment relating to sex must be based on biological sex and it does not matter whether an individual has obtained a Gender Recognition Certificate. However, the Supreme Court’s judgment clarified that, this was not a green light to discriminate against individuals who are undergoing or have undergone gender reassignment, as trans people are still protected by the EqA.
Following the above judgment, on 21 May 2026, the Equality and Human Rights Commission (EHRC) presented to Parliament a Statutory Code of Practice for Services, Public Functions and Associations (Code) to assist:- (1) courts and tribunals with adjudicating discrimination cases; and (2) services providers (and employers) to avoid adverse decisions against them. Parliament has 40 days from 21 May 2026 to review the Code and if approved, the government will set a date for it to come into force.
Services
Here are parts of the Code that service providers should pay attention to in respect of sex:-
| The Code | Example |
| It is not unlawful sex discrimination to provide separate services for each sex where:-
(1) a joint service would be less effective/impracticable; or (2) separate services are a proportionate means of achieving a legitimate aim.
|
A charity sets up separate hostels for men and women experiencing domestic abuse. The hostels each provide the same level of service, but the charity believes a unisex hostel would be less effective. |
| It may be lawful to provide single-sex services in specified circumstances, for example where:-
(1) only one sex needs the service, for reasons of privacy, decency or health and safety; or (2) the service involves physical contact and one sex might reasonably object to the presence of the other.
These exceptions must be applied restrictively, proportionately and not based on ambiguity about sex or gender identity.
|
Post-natal exercise classes can be provided to women only, since only women need the service. |
| It may be lawful to exclude/provide a different service to a person who is undergoing or has undergone gender reassignment from single-sex or separate services, only if this is a proportionate means of achieving a legitimate aim, such as privacy, safety or the needs of other users.
If a trans person is visually and for all practical purposes indistinguishable from a non-trans person of their acquired gender, they should normally be treated according to their acquired gender unless strong reasons exist to the contrary.
|
A clothes shop has separate changing areas for male and female customers to try on clothes in cubicles. The shop concludes that it would not be appropriate or necessary to exclude a transsexual woman from the female changing room as privacy and decency of all users can be assured by the provision of separate cubicles. |
| It is unlawful to harass/victimise service users because of sex or gender reassignment. Unwanted conduct related to these protected characteristics that violate dignity or create an offensive environment is prohibited.
Service providers should address acts of discrimination or harassment as part of disciplinary rules and procedures, train staff on the legal requirements and implement clear equality policies that distinguish between acts relating to sex and gender reassignment.
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A transsexual woman may succeed in a harassment claim if she could prove that the service provider intentionally deadnamed her or addressed her as ‘he’ or ‘sir’ that had the purpose or effect of violating her dignity or creating a hostile environment for her. |
| Positive action (not discrimination) remains lawful if they are proportionate and evidence based.
|
In monitoring users of its swimming pools, the local authority noted that women used them far less than men. In meetings with members of women’s societies/groups, the local authority learned that women were apprehensive about swimming with men. In order to improve use by women, the local authority arranged a special swimming session per week for women only. The disadvantage to men is likely to be outweighed by the benefit of increasing participation by women and the step is a proportionate way of achieving the legitimate aim.
|
While the Codes applies to service providers, many employers are also service providers and therefore will find the Code a useful guide. Employers should therefore pay attention to the following parts of the Code in respect of sex:-
| The Code | Example |
| Employers are legally responsible for acts of discrimination, harassment or victimisation committed by their employees in the course of employment. | A waitress repeatedly and deliberately misgenders a trans waiter who brings a claim as a result. Because the discriminatory act happened at work, the employer can be held legally accountable alongside the waitress. |
| “In the course of employment” has a wide meaning. | A financial adviser attends a Christmas party organised by their employer. The financial adviser makes multiple discriminatory comments to and about a trans colleague. The trans colleague subsequently brings a claim in the Employment Tribunal. As the party is organised by the employer, it is likely to have sufficient connection to the workplace and the employer will therefore be vicariously liable. |
| An employer will not be liable for unlawful acts committed by their employees in the course of employment where the employer has taken all reasonable steps to prevent such acts.
|
A shop owner becomes aware that an employee is refusing to serve a trans customer. The employer tells the employee to treat trans customers in the same way as other customers and that discrimination is a disciplinary offence. However, the employee continues to treat trans customers less favourably – and one trans customer brings a claim against the employer and the employee. The employer may avoid liability if they can show that they took all reasonable steps to stop to stop the employee from acting in a discriminatory way. |
| Individual employees may be held personally liable for unlawful acts which they commit in the course of employment whether or not the employer has a defence against liability. | A software engineer tells his line manager that he is trans. Over the next month, his line manager strips the employee of his responsibilities. The software engineer brings a claim for discrimination in the Employment Tribunal and is successful. The Tribunal orders that the line manager pays damages out of his own pocket. |
How Nelsons can help
Kate Frisby is an Associate in our expert Employment Law team. She provides advice on a wide range of employment matters, including performance management, drafting of policies and contracts, settlement agreement negotiations and assisting with claims in the Employment Tribunal.
Ronny Tang is an Associate in our expert Dispute Resolution team, specialising in defamation claims, contentious probate
and inheritance claims, Trusts of Land and Appointment of Trustees Act 1996 claims, Equality Act 2010 claims and Protection From Harassment 1997 claims.
If you have any questions concerning the above related subject, please contact Kate, Ronny or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
Contact usIf this article relates to a specific case/cases, please note that the facts of this case/cases are correct at the time of writing.