EHRC publishes draft Code of Practice following For Women Scotland

On 21 May 2026, the Equality and Human Rights Commission ('EHRC') published a revised draft Code of Practice for services, public functions and associations (the 'draft Code'), which has been laid before Parliament in accordance with section 14 of the Equality Act 2010.

The long-awaited draft Code has been produced following the Supreme Court's decision in For Women Scotland Ltd v The Scottish Ministers, in which it was held that notwithstanding the provisions of the Gender Recognition Act, 'sex' in the Equality Act refers to 'biological sex' and as such that references to man/male refer to someone who is 'biologically male' and references to woman/female refer to someone who is 'biologically female', regardless of whether the individual in question has a Gender Recognition Certificate (see our previous article here).

Impact for charities

The Equality Act prohibits discrimination on the basis of 'protected characteristics', which include sex (as defined above) and gender reassignment (which applies where a person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex). Many charities that support particular disadvantaged groups, such as women or LGBTQ+ people, operate on the basis of one of the specific exceptions under the Equality Act. Two major exceptions for charities are: 

• section 193 (the 'Charities Exception'), which permits the restriction of benefits to persons who share a protected characteristic if:

1. this is done in pursuit of a charitable instrument (e.g. a charity's constitution); and
2. the provision of the benefit is:

1. a proportionate means of achieving a legitimate aim; or
2. for the purpose of preventing or compensating for a disadvantage linked to a protected characteristic; and

• section 158 (the 'Positive Action Exception'), which applies if a person (in this case a charity) reasonably thinks that:

1. persons who share a protected characteristic suffer a disadvantage connected to the characteristic;
2. persons who share a protected characteristic have needs that are different from the needs of persons who do not share it; or
3. participation in an activity by persons who share a protected characteristic is disproportionately low,

in which case the charity is not prohibited from taking any action which is a proportionate means of achieving the aim of:

1. enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage;
2. meeting those needs; or
3. enabling or encouraging persons who share the protected characteristic to participate in that activity (the 'Positive Action Exception').

Many charities are currently operating under the Charities Exception on the basis that their governing documents refer to supporting women. Although the draft Code's guidance for charities is not particularly clear, its provisions imply that if such a charity decides to benefit trans women as well as women who were assigned female at birth, this will mean that their activities fall outside the Charities Exception and constitute unlawful discrimination. This is because the group it is supporting is not limited to a single protected characteristic, because it includes people who are not 'women' as defined in the Equality Act.

Each charity's situation will be different, but depending on their current activities, charity trustees may wish to consider whether it is in the best interests of the charity and its beneficiaries to seek to amend their governing document. This would constitute a 'regulated alteration' and require the consent of the Charity Commission.

By contrast, if a charity's governing document does not refer to a specific protected characteristic, and it has chosen to support women under the Positive Action Exception, the trustees may wish to consider whether both groups (i.e. people sharing a protected characteristic on the basis of sex and people sharing the protected characteristic of gender reassignment) are experiencing the disadvantage their work is aiming to alleviate, each on the basis of their own protected characteristic. This would need to be a separate consideration for each group, but trustees may find that the same or similar work is a proportionate means of achieving a legitimate aim with regards to each.

Next steps for charities 

On 21 January 2026, the Charity Commission responded to an open letter on charity governance and the Equality Act 2010 (see our previous update here).

• In this letter, David Holdsworth noted that 'in terms of our regulatory approach whilst the Code of Practice is being finalised, this has been to accept that it can be a reasonable decision for trustees to await the final statutory guidance, or alternatively to seek legal advice relevant to their charity’s position and make changes as they consider necessary.'

Parliament has 40 days to review the code so it will be some time before it is formally in force. The Charity Commission has confirmed that it will work 'at pace' to update its own guidance, but will need to ensure that it carefully reviews this as against the final Code.

Trustees will likely wish to follow the progress of the draft Code and begin considerations about their charity's approach. If you have any questions on this topic, please get in touch with your usual Withers contact or the authors of this article.