Leaked EHRC Code of Practice Suggests Appearance-Based Decisions on Single-Sex Spaces

Recent leaks of a draft Equality and Human Rights Commission (EHRC) Code of Practice have raised some important questions about how single sex facilities should be managed. Once approved, the EHRC Code of Practice will have significant implications for employers’ interpretation of the Equality Act 2010 (EqA 2010).  

Whilst the draft guidance has yet to be formally approved, its contents suggest a shift in how employers may be expected to make decisions regarding toilets, changing rooms, and other single-sex spaces. Employers will be required to balance trans rights with privacy and dignity in the workplace. If mishandled, employee rights could be breached, leading to potential claims.

If you believe your employment rights have been breached, contact Redmans Solicitors without delay. Our team of employment specialists is here to help. Following a consultation, we can assess your case, answer your queries and provide expert advice.

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The Role of the EHRC and the Code of Practice 

The Equality and Human Rights Commission is the body responsible for equality and human rights issues in England, Wales and Scotland. The Commission aims to challenge discrimination and promote equality of opportunity and human rights. Its Codes of Practice provide guidance for employers on the EqA 2010, the UK’s main legislation on discrimination. And while the Code isn’t law, it is influential in legal disputes.  

In recent months, however, a leaked draft of the EHRC Code of Practice has caused significant concern. The leaked draft comes after a significant Supreme Court decision in April 2025. This decision confirmed that the terms “woman” and “sex” in the EqA 2010 refer to a biological woman and sex.

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Reports of the draft state that trans people could, in theory, be excluded from single-sex spaces which don’t align with their sex at birth if their exclusion is a “proportionate means of achieving a legitimate aim”. The recent Code aims to clarify obligations regarding single-sex services and spaces, but leaked excerpts have raised concerns.  

What the Leaked EHRC Code of Practice Appears to Say  

The guidance suggests that transgender people should be treated with dignity and respect. Despite this, it also states that if there are “concerns” raised by other service users, then decisions about access for trans people to single-sex spaces may need to be based on appearance.  

The guidance states that it would be unlikely to be legitimate for a concern to be based on whether someone wears clothes associated with another sex or presents themselves in a way conventionally associated with another sex.  

Previous guidance placed greater emphasis on self-identification. Conversely, the leaked draft suggests organisations can consider an individual’s presentation or perceived sex when determining access to certain spaces. The draft doesn’t enforce appearance-based decision-making. Yet, it appears to make it permissible when considered necessary, or a “proportionate means of achieving a legitimate aim.”

“Legitimate aims” can include protecting privacy, dignity, or safety, which may justify restricting access to certain facilities. Notably, this framework already exists in discrimination law. Applying this principle in these circumstances, however, will likely prove challenging. This will be especially the case if concerns raised by some employees affect the rights and dignity of others.  

In an employment context, this raises questions about how managers are expected to make these decisions consistently and objectively, without risking the organisation’s exposure to discrimination claims.  

Discrimination and Harassment Under the Equality Act 2010  

Gender reassignment is a protected characteristic under the EqA 2010. This means that individuals are protected against unfavourable treatment because they have or are undergoing a gender transition. Trans employees are also protected from harassment, defined as unwanted behaviour related to a protected characteristic which violates someone’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.  

Excluding a trans employee from workplace facilities or subjecting them to intrusive questioning may still amount to discrimination or harassment.  

The guidance states that it could be lawful to ask a transgender person about their sex assigned at birth to preserve a single sex space. Employers and managers will need to be careful about the manner of any questioning and the reasonableness of the questions asked to ensure compliance with the EqA 2010. The guidance confirms that any instances of excluding a person from a service should be dealt with “as sensitively as possible.”

TransActual, trans rights campaigners, have warned that the proposal could have other discriminatory effects. They argue that women of colour and masculine-presenting lesbians are likely to be perceived as “less feminine” by strangers, which could expose them to unjust and intrusive treatment under this new guidance.  

Practical Implications for Employers and HR Teams 

If the leaked EHRC Code of Practice is adopted, it will have practical implications for employers and HR professionals. Employers will need to consider who will be responsible for making these assessments and how they can be applied consistently. Without clear policies, employers may face complaints, grievances, or claims in an employment tribunal.  

Employers may need to consider their workplace policies to ensure compliance while remaining inclusive and workable in practice. Training for managers and HR professionals should also be implemented to maintain consistency. Any decisions or outcomes made in these circumstances should be well-documented and based on specific facts, rather than on a blanket rule.  

Read More: “There is No Dignified Way to Be Both Trans and a Salaried Judge”, UKs Only Trans Judge Says as She Retires

Employers could consider gender-neutral or private facilities where possible, as the guidance states that it wouldn’t be proportionate to leave a trans person without essential services, like a toilet. Furthermore, employers will need to consider these decisions in the context of their own size and resources, but the guidance acknowledges that, for some organisations, providing alternative facilities may not be feasible.  

Ultimately, though, employers should avoid making reactive changes based on the leaked Code of Practice, as it isn’t yet in force and could still be subject to change.  

Leaked EHRC Code of Practice: Our Final Thoughts

The leaked Code of Practice highlights how complex managing single-sex spaces at work can be. Employers will need to focus on fairness, objectivity and lawful practice when considering decisions under the new guidance. Employers should also take legal advice to minimise litigation under the EqA 2010. Clear policies and well-trained managers will be essential in avoiding complaints and reputational damage.

From an employee’s perspective, it’s essential to understand one’s employment rights, so that they can be upheld. If an individual believes their rights have been breached, they should first consider internal resolution. However, if this proves unsuccessful, they may want to pursue Acas early conciliation before initiating an employment tribunal claim. Seeking specialist legal advice is recommended to ensure the best possible outcome.

If you believe your rights have been breached, contact us now. Redmans Solicitors are employment specialists, and following a brief chat, we can provide expert advice. We can also assess your case’s eligibility and guide eligible individuals through the legal process.

To get started, please:

• Call 020 3397 3603
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