The publication of the Equality and Human Rights Commission’s updated Code of Practice has come after an inexplicably long delay, despite having been submitted to the Minister for Women and Equalities in September 2025. Reports that Bridget Phillipson attributed the delay to EHRC “grandstanding” are both disappointing and wrong. They reflect an unwillingness on the part of the Government to take responsibility for a delay that was the result of internal politics and misplaced priorities. The current Government has not been focussed on clarifying the law to protect women’s rights.
The Supreme Court judgement provided clarity on the Equality Act 2010. The EHRC Code is the necessary next step to ensure the law is understood and applied in practice. The Government’s delay in publishing the Code has left institutions in a state of confusion. As Policy Exchange identified in its work on schools and safeguarding, in Still Asleep at the Wheel, the absence of clear guidance led to problematic policies and left space for activist ideologies to become embedded.
The revised Code recognises that single-sex services may lawfully exclude trans women. It makes clear that services open to both women and trans women are not, in law, single-sex services under the Equality Act 2010. Service providers must understand that a facility for women which admits trans women could be ‘unlawful sex discrimination or lead to unlawful harassment against women who use the service’. This is a vital clarification, which will permit the proper implementation of equality law and protect the rights, safety and dignity of women in public spaces.
There are some new sections to the Code which risk adding further confusion, undermining the central objective of supporting service providers. The section on asking individuals about their sex risks becoming overly convoluted. The guidance states that it is “unlikely to be practical or appropriate” to make enquiries about a person’s sex in relation to facilities such as toilets and recommends extreme caution. The guidance further says that “information about sex is likely to constitute special category data for the purposes of the Data Protection Act 2018 (DPA) and UK General Data Protection Regulation (GDPR)”. This is a contested interpretation of the law that risks creating further issues.
Other sections of the guidance also risk creating unnecessary ambiguity. One example discusses a service used by Jewish women excluding men and trans women. Previously, the guidance suggested that providers consider whether users may reasonably object to a trans man accessing a gym. The new version introduces a proportionality test, including reference to “the extent to which the trans person presents as the opposite sex”. The reliance on subjective assessments risks exacerbating confusion.
Ultimately, the Code is a significant and necessary step forward. Women’s rights under the Equality Act 2010 are not optional, nor are they a matter of political fashion. The task now is to ensure that service providers understand the law so that these protections are upheld in practice.
Baroness Falkner of Margravine is a crossbench peer and the former chairwoman of the Equality and Human Rights Commission.