EHRC Consultation: Equality Watchdog Updates Code Following ‘For Women Scotland’ Judgment

Published : May 27, 2025

The Equality and Human Rights Commission (EHRC) has launched a significant public consultation to update its statutory Code of Practice following the landmark Supreme Court ruling in the For Women Scotland case. The case for which the EHRC consultation concerns, centred around the legal definition of “sex,” and how it must be applied under the Equality Act 2010 (EqA 2010).

Below, we provide a background to the case and the subsequent judgment. We discuss what changes the EHRC will make and how this could affect the workplace. If you have any questions about your rights or believe they have been breached, please contact Redmans Solicitors now. As employment law specialists, we can answer your queries and provide expert advice.

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The Legal Turning Point: For Women Scotland and the EHRC Consultation

The catalyst for the current EHRC consultation was the Supreme Court ruling in For Women Scotland v Scottish Ministers. This judgment, handed down on 16 April, reaffirmed the biological interpretation of the protected characteristic of “sex” under the EqA 2010. It clarified that the terms “woman” and “man” refer to a person’s biological sex at birth.

The For Women Scotland Case

The case initially arose when For Women Scotland, a women’s rights campaign organisation, challenged Scottish government policies. It argued that the government had blurred the legal definition of “sex” by recognising gender identity over biological sex in certain contexts.

After a lengthy court battle, the issue was eventually handed to the Supreme Court to make a final decision. Ultimately, the Court clarified that the terms ‘man,’ ‘woman,’ and ‘sex’ in the Equality Act 2010 refer to biological sex.

This judgment has significant legal and practical implications, as it confirms that, for equality law, “sex” means that which is recorded at birth. While a Gender Recognition Certificate (GRC) will remain valid for other legal purposes, the gender one acquires under a GRC won’t alter the protected characteristic of sex for the purposes of the Equality Act 2010.

The EHRC Consultation

After the Supreme Court handed down its ruling, the EHRC was compelled to provide clear, authoritative guidance. As the statutory equality watchdog, organisations look to its Code of Practice for interpretation of the EqA 2010, meaning it had to be updated to reflect the established legal position. While the Code may not be legally binding, it carries significant legal weight, with courts and tribunals required to consider it when deciding relevant cases.

At first, the EHRC released an interim statement outlining the key consequences of the judgment, including considerations for single-sex services and facilities. However, understanding the matter’s complexities and the need for further guidance, an EHRC consultation on a comprehensive set of updates to the Code of Practice has been launched.

Key Changes to the Code of Practice Under the EHRC Consultation

The EHRC consultation introduces a series of detailed amendments to the Code of Practice. The revisions aim to clarify the legal position on sex, gender recognition, and related protected characteristics in light of the For Women Scotland ruling.

One of the most notable changes is the redefinition of “sex.” Previously, the Code referred to birth sex or that which has been acquired via a GRC. However, the updated definition has removed reference to GRCs. It now simply reads, “Legal sex is the sex that was recorded at your birth.”

Another update comes in Chapter Two, concerning who has rights. The consultation materials include new context on GRCs, clarifying that while individuals who hold them aren’t protected against discrimination based on their newly assigned sex, they are still protected based on gender reassignment and their birth sex. This chapter also specifies that someone attracted to their own sex is considered a gay man or a lesbian woman.

Then, in Chapters Four, Five and Eight, the Code introduces new examples addressing direct discrimination, indirect discrimination and harassment. The examples on direct discrimination and harassment focus on perceived protected characteristics, specifically relating to sex and gender reassignment. Meanwhile, the example of indirect discrimination illustrates how individuals may face the same disadvantage, even without sharing the same protected characteristic, again within the context of sex and gender reassignment.

While these are the main changes in the workplace, the EHRC consultation also covers areas like single-sex services, sport, and communal accommodation. These may not affect every workplace, but could matter in specific sectors. As a result, it’s worth reviewing the complete draft Code to ensure a full understanding.

What the EHRC Consultation Means for You at Work

The EHRC consultation will likely have significant implications across various sectors, especially those operating services, workplaces, or facilities segregated by sex. While changes to the statutory Employment Code of Practice are forthcoming, they have yet to be established. This means individuals shouldn’t expect immediate amendments regarding workplace equality and the For Women Scotland judgment. Nevertheless, the EHRC has indicated that the Supreme Court’s judgment has immediate legal effect. Because of this, employers should consider reviewing their policies right away.

Your Rights in Practice

One area that will require immediate review concerns single-sex services, such as toilets or changing rooms. Where these services exist, employers must ensure their policies remain legally compliant, especially with regard to trans employees.

Policies concerning discrimination and harassment at work will also need to be updated to clarify how individuals are protected. In line with the EHRC consultation, employers may want to include new examples of how discrimination could arise.

Yet, since these changes will likely alter the responsibilities of senior leadership, employers mustn’t overlook training. Employers should cover the For Women Scotland judgment, its legal effects, and the subsequent amendments made in the workplace. Should they fail to do so, issues like discrimination may arise, and employees may have an employment tribunal case.

If you have any questions about these changes or believe your employer has breached your rights, contact us today. Redmans Solicitors are sector specialists, and following a brief chat, we can discuss your possible options. To learn more about the help we can provide you today, please:

The information on this page is intended for general informational purposes only and does not constitute legal advice.