LEGAL UPDATE: EHRC URGES FAST ACTION ON OUTDATED EQUALITY GUIDANCE
The Equality and Human Rights Commission (EHRC) has formally withdrawn its interim update on the For Women Scotland v Scottish Ministers case and is pressing the government to urgently update the Code of Practice that guides how the Equality Act 2010 applies in real-world settings.
What’s the issue?
The EHRC submitted a new draft Code of Practice (for services, public functions and associations) to the government on 4 September 2025.
This followed the Supreme Court’s judgment in For Women Scotland v Scottish Ministers [2025] UKSC 16, which clarified how the term “sex” should be understood in legal and policy contexts.
It is argued that the current version of the Code (still technically in force) no longer reflects the law after this judgment, yet organisations may still be relying on it.
What is the EHRC asking for?
In a letter dated 15 October 2025, the EHRC urged the government to:
Revoke the current (outdated) Code so it’s no longer used in practice;
Lay the updated Code before Parliament for review (a process which takes 40 sitting days).
The EHRC warns that failing to act creates legal uncertainty and makes enforcement of the Equality Act more difficult for all involved, including HR teams and service providers.
Interim guidance withdrawn
The EHRC has also:
Withdrawn its interim update on the implications of For Women Scotland, initially published in April and updated in June 2025.
This interim guidance had faced criticism for being oversimplified and inaccurate, particularly in how it addressed gender reassignment discrimination and access to services.
EHRC advice for now:
Duty-bearers (including employers and service providers) should take specialist legal advice before making decisions involving:
Sex or gender reassignment protections under the Equality Act 2010;
Human rights considerations under the Human Rights Act 1998.
Human rights body weighs in
The Council of Europe Commissioner for Human Rights also raised concerns in a recent letter to UK parliamentary committees:
He warned that some interpretations of the For Women Scotland judgment could lead to widespread exclusion of trans people from public spaces.
He called for clear and practical guidance on how to support inclusion while complying with the law.
What should you do now?
Until the new Code is in place:
Be cautious about relying on the current EHRC Code — it’s outdated and potentially misleading.
Do not use the now-withdrawn interim EHRC update to guide decisions.
Take legal advice where your policies or decisions touch on protected characteristics, particularly sex and gender reassignment.
Stay tuned for updates — we’ll let you know as soon as the new Code is laid before Parliament.
Got questions about how this affects your organisation’s policies or risk profile?
Reach out to one of our team, who will be happy to assist you!
