Consultation following the Supreme Court's decision on the meaning of 'sex' in the UK Equality Act

The Equality and Human Rights Commission has begun consulting on revisions to its Code of Practice for services, public functions and associations (the 'Code') following the decision of the Supreme Court in For Women Scotland v The Scottish Ministers. The consultation opened on 20 May 2025 and will close on 30 June 2025. 

The Code updates the definition of 'legal sex' to 'the sex that was recorded at your birth' and confirms that a gender recognition certificate does not change a person's legal sex for Equality Act 2010 ('Equality Act') purposes.  It includes a new example of sex discrimination by perception involving a trans woman, and confirmation that the pregnancy and maternity provisions of the Equality Act include trans men. It also  includes updated examples of indirect discrimination and harassment as well as the provision of separate or single-sex services for men and women.

The EHRC aims to submit the final Code to the government by the end of July, although there are concerns that the volume of submissions received may lead to considerable delay. The government will then decide on next steps. No indication has been given of when the EHRC might update the Code of Practice on employment, which would be likely to be a lengthy process given the extensive developments in case law since the Equality Act came into force 15 years ago.

If you have any questions about these developments please don't hesitate to get in touch with a member of our employment team.

This article is authored by Christina Morton, senior knowledge lawyer in our UK employment team.