The EHRC Code of Practice and charities

The Equality and Human Rights Commission’s Code of Practice for Services, Public Functions and Associations (the ‘Code’) came into force on 5 August 2026. The Code was updated following the Supreme Court case, For Women Scotland v Scottish Ministers [2025] UKSC 16, summarised in our December blog.

Charity Commission urges preparation

In preparation, the Charity Commission published an update on 21 July, urging charities to prepare for compliance with the Code. While the Commission is working on updating its guidance on the Equality Act 2010, the update was clear that:

• charities should not wait for the updated Commission guidance to start taking steps to ensure compliance with the Code; and
• the Commission’s updated guidance will not alter the legal principle established in the Supreme Court judgment in the For Women Scotland case, that for the purposes of the Equality Act, ‘sex’ means ‘biological sex’.

The Commission aims to publish its updated guidance in the autumn.

How do changes affect charities?

In context, the Equality Act impacts charities primarily in relation to:

• associations
• services

Associations

Charities which restrict membership to a group defined by one of the protected characteristics in the Equality Act, such as sex, race or disability, may rely on section 193 of the Equality Act and the associations exception in Schedule 16.

The s.193 exception allows charities to provide benefits only to people who share the same protected characteristic (for example sex, sexual orientation or disability), if:

• this is in line with their charitable instrument; and
• it is objectively justified, or to prevent or compensate for disadvantage. 

There are a number of charities which are established to provide benefits to ‘men’ (and/or ‘boys’) and to ‘women’ (and/or ‘girls’). Following the judgment, they may find themselves having to consider their own policies and procedures, including inclusion policies and operational practices to ensure they are compliant with the Code, as updated in line with the legal position.

Services

Charities which provide services to a group defined by sex benefit from a particular exemption in Schedule 3, paragraph 27 of the Equality Act 2010. The restricted provision must be a proportionate means of achieving a legitimate aim, and one of the following must apply:

• only people of that sex require the service;
• joint provision would not be sufficiently effective;
• where users need special care, supervision or attention;
• where a user might reasonably object to the presence of the opposite sex; and
• the service is likely to involve physical contact between the service user and another person.

The updated Code explains that trans people should be excluded from services provided only to their acquired gender. However, the service provider should consider whether the disadvantage to trans people, and any other people who may be disadvantaged, outweighs the benefits of achieving the legitimate aim.

Service providers should also consider whether there is a less intrusive option than excluding trans people which would be proportionate. The Code also points out that “if a service provider (or a person providing a service in the exercise of public functions) admits trans people to a service intended for the opposite sex...this is very likely to amount to unlawful sex discrimination against the people of the opposite sex who are not allowed to use it. A service which is provided to women and trans women could also be unlawful sex discrimination or lead to unlawful harassment against women who use the service.”

Next steps

Charities will understandably be seeking clarity and certainty over these complex and sensitive issues. The Commission has made it plain that charities need to get to grips with the new Code sooner rather than later. We recommend that charities:

• conduct a review of their constitution to identify any single sex provisions;
• examine any services they provide to a single sex, and decide whether that provision is lawful;
• conduct a thorough risk assessment of potential challenges from a litigation perspective. 

If you have any questions or would like any advice in relation to your charity law obligations and compliance with the Code, please contact Sarah Williams. For employment advice, please contact Rebecca Pallot. 

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