It is now over a year since the Supreme Court judgment in For Women Scotland v Scottish Ministers about the meaning of "woman", "man" and "sex" under the Equality Act 2010. However, the practical application of the judgment in relation to access to single-sex spaces continues to cause issues for employers and service providers. This is evident from recent enforcement action taken by the Equality and Human Rights Commission ("EHRC"), but progress on substantive guidance for organisations has been painfully slow.
Recent enforcement action
The EHRC recently confirmed it had taken enforcement action against 19 public sector organisations (in the policing, education and health sectors). The enforcement action related to misrepresentation in the organisations' policies that suggested there was an automatic legal right to access single-sex spaces based on self-identification of gender. The EHRC reports all of the involved organisations have withdrawn the relevant policies. The taking of this action highlights that organisations need to do more than simply await updated guidance. Proactive steps to audit whether existing policies and practices may not comply with the law should be taken, in conjunction with legal advice.
Guidance
In the immediate aftermath of the Supreme Court's judgment last year, the EHRC issued what it termed an "interim update" on the practical consequences of the judgment. This covered the obligations of employers, public service providers, sporting bodies, schools and associations in relation to single-sex facilities and services. It immediately attracted criticism, not least for failing to differentiate between the obligations of public service providers and employers whose workplaces are not open to the public. An amended interim update was published a couple of months later, in June 2025, that more clearly set out employer obligations. Then, in October, the update was withdrawn from the website and replaced with a notice explaining the draft Code of Practice on services, public functions and associations (the "draft Services Code") had been submitted to the UK government for approval.
The Good Law Project, along with three individual anonymised claimants, then brought a judicial review of the interim update, asserting, amongst other things, that it was wrong in law and incompatible with the rights of trans people under the European Convention on Human Rights. The judicial review was unsuccessful, but given that the update had already been withdrawn, guidance for employers and service providers remains lacking.
The Services Code
In the meantime, there was little information forthcoming about the progress of the draft Services Code. However, in April the EHRC confirmed that, following recent feedback from the UK government on the draft Services Code, a number of adjustments had been made to "help the Code provide legally accurate, practical guidance that is useful to duty bearers". It went on to say “These aim to strengthen duty bearers’ understanding of the law and how it applies across a range of the scenarios they encounter day-to-day, so that all service users are treated with dignity and respect, in line with the Equality Act."
This is undoubtedly welcome progress. The draft Code has received ministerial approval and was laid before Parliament on 21 May. Parliament has 40 days to consider the Code. If it is not disapproved during that time, the UK government will set a date for it to come into force. Updates in the draft Code include clarification that single sex services will no longer be single sex if they are provided to a trans person of the opposite biological sex. However, it also makes clear that service provides must take into account the impact on trans people when deciding if they can justify providing a service on a single or separate sex basis. Employers, however, need to be cognisant that this is the draft Services Code, and there is a separate EHRC Employment Code of Practice. The EHRC has stated it will update its guidance for employers "in due course".
What should employers do?
Employers should continue to seek legal advice should any issues arising from the For Women Scotland judgment arise in the workplace. This remains a complex and emotive area of the law, and the advice given will turn on the specific facts of each case.
