The Supreme Court sex ruling and EHRC draft Code: what employers should do now
- David West
- May 24
- 3 min read
The Supreme Court’s decision in For Women Scotland Ltd is one of the most significant Equality Act developments in recent years.
It clarified that, for the purposes of the Equality Act 2010, the terms “sex”, “man” and “woman” refer to biological sex.
That is a major legal clarification.
But for employers, public bodies, charities, schools, service providers and organisations delivering public-facing services, the real challenge is not simply knowing what the judgment says.
It is applying it carefully, lawfully and calmly.
The EHRC’s updated draft Code of Practice for Services, Public Functions and Associations has now been laid before Parliament. It is not yet in force. It remains subject to the parliamentary process and will only take effect once formally commenced.
That distinction matters.
The draft Code is important and will carry legal weight once in force. But it is not a green light for rushed policy rewrites, blunt communications or local managers making difficult calls without guidance.
The organisations most exposed are likely to be those that either:
do nothing and leave managers to improvise; or
move too quickly and create avoidable discrimination, harassment, employee-relations or reputational risk.
Neither approach is safe.
What has changed?
The Supreme Court has clarified how “sex” is to be understood under the Equality Act.
That may affect how organisations approach single-sex services, facilities, privacy, dignity, safeguarding, changing spaces, washing facilities, intimate care, accommodation, searches and public-facing services.
But the judgment does not remove protection for trans people.
Gender reassignment remains a protected characteristic under the Equality Act. Harassment, victimisation and discrimination risks remain. Employers and service providers still need to manage the workplace respectfully and avoid inflammatory, inconsistent or careless handling.
What employers should review now
Employers and service providers should identify where sex, privacy, dignity, safeguarding, safety or public access are relevant.
That may include:
• toilets, changing rooms and washing facilities• uniforms and dress codes• dignity at work policies
• bullying and harassment procedures• employee guidance• manager scripts• service-user complaints processes
• safeguarding procedures
• lone-working arrangements• searches or security procedures• public-facing service arrangements
• data protection and confidentiality processes• occupational health and wellbeing support
The key risk is inconsistency.
If managers are asked difficult questions and there is no agreed organisational position, the response may be legally unsafe, operationally unworkable or unnecessarily inflammatory.
Avoid over-correction
One of the biggest risks is over-correction.
Some organisations may read the Supreme Court decision and assume they need to rewrite every policy immediately and in absolute terms. That may create new problems.
Employers still need to consider context, proportionality, privacy, dignity, safeguarding, service delivery, harassment risk and the rights of all affected groups.
A lawful policy is not just technically accurate.
It must also be workable, consistent and capable of being communicated without inflaming workplace conflict.
Avoid under-correction
Doing nothing is also risky.
If an organisation has policies that no longer reflect the legal position, or managers are left to make ad hoc decisions, the risk increases.
That risk is particularly acute in organisations operating in education, healthcare, care, custody, leisure, transport, security, local authority services, charities, outsourcing and other public-facing environments.
A practical framework
Decision-makers should now ask:
Which services, facilities or roles are affected?
Are current policies legally accurate?
Are policies operationally workable?
Do managers know what to say if challenged?
Have privacy, dignity and safeguarding issues been risk assessed?
Are sex and gender reassignment being treated as distinct protected characteristics?
Are harassment and dignity-at-work risks properly managed?
Are communications calm, precise and respectful?
Are hard cases escalated before decisions are made?
Is the organisation applying a consistent approach?
The practical rule is:
Audit. Risk assess. Update. Train. Communicate. Review.
The DW Consulting view
The Supreme Court decision gives important legal clarity.
The EHRC draft Code is a major development.
But this is not a moment for knee-jerk policy drafting.
It is a moment for careful, practical HR governance.
Employers should review their policies, facilities, manager guidance and risk assessments. They should also ensure that senior leaders understand what has changed, what has not changed, and when legal or specialist HR advice is needed before decisions are made.
DW Consulting Experts supports employers with Equality Act risk, policy drafting, workplace investigations, manager guidance, HR training and Employment Tribunal strategy.
If your organisation needs support reviewing policies or managing a sensitive equality issue, please get in touch.
This article is general HR and employment-law commentary and is not a substitute for advice on specific facts.
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