EHRC taking regulatory action concerning single-sex spaces

In May 2024, the previous Government launched a call for input, seeking examples of policies or guidance in which public bodies (or organisations that advise public and private organisations) “might … be misinterpreting the law on providing single-sex spaces or services”.

Of the responses received, 404 were referred to the Equality and Human Rights Commission (EHRC) for review on the basis they had misinterpreted the single-sex provisions of the Equality Act 2010.

Since the call for input, the For Women Scotland v The Scottish Ministers UKSC/2024/0042 judgment has addressed the meaning of ‘sex’ under the Equality Act. The EHRC has now carried out a review of the evidence submitted and is taking regulatory action where policies misrepresent equality law. 

The EHRC found that that several organisations have current policies or guidance which:

“wrongly suggest people have a legal right to access single-sex spaces and services according to their self-identified gender”.

The EHRC is therefore taking regulatory action by writing to 19 organisations – including those in the policing, education and health sectors – to request that these policies are changed. These organisations must respond with assurances that their policies will be withdrawn and set out any proposed timetable to revise their policies. 

Case conclusion

This announcement from the EHRC does not indicate any material change in its position on the approach to single sex spaces under the Equality Act as indicated by the draft guidance recently submitted to Government.

At the time of submission, Baroness Falkner, chair of the EHRC commented:

“We have been clear that service providers, associations and public functions should not wait for the code of practice to be published to make any changes needed to comply with the law”.

This indicates interventions would not be postponed. However, it is an important marker of the EHRC’s intent to address policies in the provision of services. 

The EHRC is currently reviewing its guidance on separate and single-sex services and has also recently submitted its updated Code of Practice for services, public functions and associations (“the Services Code”) to the Government for consideration. 

If approved, the Services Code will be laid before Parliament for 40 days before it comes into force. Taken together, the guidance and the Services Code will provide detailed guidance for organisations going forward, although, at the time of submission, Baroness Faulkner also acknowledged: 

“It’s going to be difficult for duty-bearers, service providers, to adapt a ruling which is quite black and white into practical steps according to their own circumstances and their own organisation”.

The current interventions show that organisations are still having real issues when it comes to interpreting the law on this matter and when considering issues relating to single-sex space policies.  

What next?

Organisations should be alert to the need to be proactive in examining policies, and of the risk of reports being followed up by the EHRC if they do not. They should be sure to review policies and guidance for any single-sex or separate-sex spaces or services and check it against their legal obligations, including the duty not to discriminate, taking into account the specific circumstances of the organisation. 

Work on updating the Employment Code of Practice is expected to begin after the Services Code is complete.