EHRC Code of Practice 2025 - For Women Scotland

This is our submission to the Equality and Human Rights Commission (EHRC) consultation on the update to the Code of Practice for Services, Public Functions and Associations following the Supreme Court judgment that sex has a biological meaning in the Equality Act. The consultation closes on 30 June 2025.

Updated legal definition of sex

We have updated the legal definition of sex throughout the code of practice. Our previous definition explained that:

‘Legal sex is the sex that was recorded at your birth or the sex you have acquired by obtaining a Gender Recognition Certificate (GRC).’

Following the UK Supreme Court ruling in For Women Scotland, this definition is no longer accurate, because a GRC does not change your legal sex for the purposes of the Equality Act 2010. We have therefore updated this definition throughout the code to be:

‘Legal sex is the sex that was recorded at your birth.’

The explanation of the updated legal definition of sex is clear.

STRONGLY DISAGREE

Is there anything you would change to make the explanation this update clearer?

The Supreme Court judgment clarified “sex has its biological meaning throughout this legislation”.(para 209).

Neither the Equality Act nor the Supreme Court judgment (except when quoting EHRC submissions) mention the concept of “legal sex”, so it should not be used in the Code of Practice.

Neither the Equality Act or the Supreme Court judgment mention “sex that was recorded at birth”, so it should not be used in the Code of Practice.

Sex is a biological fact and this is independent of what may be recorded on the certificate at the time of a person’s birth. Errors in records do happen, albeit extremely rarely, and a mechanism in law exists to make later corrections in such cases. A redefinition of sex by the EHRC to mean as recorded at birth would allow, for example, Imane Khelif to continue boxing in the female competition despite being male.

The definition used in the Code of Practice should simply reflect the Supreme Court judgment and say sex in the Equality Act is a reference to a man (male) or a woman (female) and has its biological meaning.

2.1 New content on Gender Recognition Certificates

2.1.6 The Supreme Court in For Women Scotland Ltd v The Scottish Ministers (For Women Scotland) [2025] UKSC 16 has ruled that a GRC does not change a person’s legal sex for the purposes of the Equality Act 2010.

2.1.7 This means that, in relation to the Act, a person’s sex remains their biological sex, whether they have a GRC or not. This is also referred to as ‘sex at birth’ or ‘birth sex’ in this code. For example, a trans man with a GRC is a woman and a trans woman with a GRC is a man, for the purposes of the Act.

2.1.8 A trans person will be protected from discrimination because of gender reassignment, whether they have a GRC or not.

2.1.9 A trans person will also be protected from sex discrimination whether they have a GRC or not. They will be protected from sex discrimination that is based on their birth sex. They will also be protected from sex discrimination related to their acquired gender where they suffer:

harassment related to sex (s.26) (read about harassment related to sex in the changes to chapter 8)

direct discrimination by association or where this is because of their perceived sex in their acquired gender (read about discrimination by perception in the changes to chapter 4)

indirect discrimination by association (s.19A) of the Act.

The explanation of the legal rights and responsibilities set out in the new content on Gender Recognition Certificates is clear.

STRONGLY DISAGREE

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

“Legal sex” is not a term used in the Equality Act or the Supreme Court judgment. Once the Code of Practice explains the overarching definition of sex to be used throughout, then simply using the word “sex” is all that is necessary.

There is no need to introduce other terms for sex such as “sex at birth” or “birth sex”. The Supreme Court concluded sex is biological and this is the case at a person’s birth as much as it is on their death.

The general public and many service users do not understand the terms “trans woman” and “trans man”. More than a third of respondents to a poll commissioned by MurrayBlackburnMackenzie did not know that a transwoman is a man. (https://murrayblackburnmackenzie.org/2023/08/07/clarity-matters-how-placating-lobbyists-obscures-public-understanding-of-sex-and-gender/) It would be much clearer if the Code of Practice only uses the word woman when referring to a woman. If the term “trans woman” is used then the example set by the Supreme Court should be followed and it made clear what this means every time the term is used, eg. “trans woman (male)” or “trans woman (biological man)”.

Only people with a GRC have an “acquired gender”. This term is in s9(1) of the Gender Recognition Act and is only relevant in the Equality Act insofar as solemnisation of marriages or benefits dependent on marital status, so should be avoided in respect of services, associations etc. Section 2.1.9 is confusing. Everyone is protected from sex discrimination by association or perception, and for those with the protected characteristic of gender reassignment it is not restricted to those with an acquired gender ie. a GRC. Some people mistakenly think acquired gender is the same as “lived gender”.

2.2 New content on asking about sex at birth

2.2.1 It is important to be aware that some people, including some trans or gender non-conforming people, may find it distressing to be asked about their birth sex. Therefore, any necessary request about birth sex should be made sensitively, taking this into account.

2.2.2 Where obtaining information on birth sex is not necessary and proportionate, asking a trans person about their birth sex may risk unjustifiably interfering with their human rights under Article 8 of the European Convention on Human Rights (ECHR), which is respect for private and family life. Therefore, care should be taken, particularly by public authorities, that this is only done where necessary and justified.

2.2.3 Requests about birth sex are more likely to be justified where it is necessary and proportionate for a service provider, those exercising public functions or an association to know an individual’s birth sex to be able to discharge their legal obligations under the Equality Act 2010 (the Act). Any request that is made should be done in a sensitive way which does not cause discrimination or harassment.

2.2.4 Discrimination or harassment could occur if, for example, individuals are asked about their birth sex in a way which may require them to disclose this information in public, or if the language or manner of a request is rude, combative or offensive.

2.2.5 Indirect discrimination could occur if a policy on how or when to ask for such information places some protected characteristic groups at a particular disadvantage and is not justified. However, where practical, it is likely to be best to adopt the same approach with everyone, rather than only asking some people for information, because this approach is less likely to be discriminatory against any one group.

2.2.6 If it is necessary to ask a person’s birth sex, consideration should be given to whether it is reasonable and necessary to ask for evidence of birth sex. In many cases, it will be sufficient to simply ask an individual to confirm their birth sex. A service provider may make a rule that if someone is asked their birth sex and chooses to answer objectively falsely it will be grounds for exclusion from the service.

2.2.7 Example. A trans woman goes to the office of a local support group and makes enquiries with the receptionist about the group counselling sessions they offer. Based on the needs of its service users, the group provides different sessions that are single-sex or mixed-sex. The receptionist reasonably thinks that the trans woman is a biological male and, as there are some other people waiting in the office, asks her to come into a side room to get more details about the support she is looking for. When they are in private, the receptionist explains the different group sessions that are offered and asks the trans woman what her birth sex is. When she confirms her birth sex, the receptionist provides her with the details of the mixed-sex groups she could attend.

2.2.8 If there is genuine concern about the accuracy of the response to a question about birth sex, then a birth certificate could be requested. For the vast majority of individuals, this will be an accurate statement of their birth sex. However, it should be noted that a birth certificate may not be a definitive indication of birth sex. If a person has a Gender Recognition Certificate (GRC) they may have obtained an amended birth certificate in their acquired gender. In the unlikely event that it is decided that further enquiries are needed, such as confirmation as to whether a person has a GRC, then any additional requests should be made in a proportionate way which is discreet and sensitive.

2.2.9 It is important to be aware of legal provisions protecting privacy in the context of making such enquiries. If, in the course of these enquiries or otherwise, a service provider, those exercising public functions or an association acquires information that someone has a GRC or has applied for a GRC, onward disclosure of either that information or their biological sex without consent may be a criminal offence in some circumstances (read section 22 of the Gender Recognition Act 2004).

2.2.10 Read also the Data Protection Act 2018 and UK General Data Protection Regulations, which deal with processing personal data.

The explanation of the legal rights and responsibilities set out in the new content on asking about sex at birth is clear.

STRONGLY DISAGREE

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

The emphasis throughout this section on “birth sex” is entirely unnecessary. As per the Sullivan Review a minority of people may find it provides additional guidance on how to answer a question about their sex, but the vast majority know exactly what is being asked. This ordinary language should be reflected in the Code of Practice.

Single-sex services broadly fall into two categories, those where there is unrestricted access like public toilets, or where access is screened by staff such as rape crisis centres or gym membership.

Where there is unrestricted access the duty-bearer should communicate the rules of use through signage and information with the clear expectation that it will be complied with. There is no need to collect information about a person’s sex but an example would be useful to show that a service user accessing the opposite sex provision can be asked to leave if noticed by staff or if a complaint is made.

Where access is screened a duty-bearer should ask about sex in the same way as they would ask about any other necessary personal information such as age or address in line with GDPR requirements. The example in 2.2.7 should be removed as it isolates staff in a potentially aggressive situation. It is unclear why a birth certificate would be requested – this would be the situation if we had lost the case at the Supreme Court and a birth certificate could be proof that a trans person has a GRC. As proof of sex, birth certificates are unreliable so there is little point in requesting them. If there is suspicion that a service user has not provided accurate information duty-bearers should make the best assessment they can with the available information, and an example to show that service can be denied or withdrawn in such a scenario would be helpful.

The member rules for Pure Gym (https://archive.ph/kTCl2) clearly explains the range of separate sex and individual gender-neutral changing rooms available, and it would be expected that a member’s sex as given on the membership application form would be visually verified by staff during the gym induction session. However, the lack of any single form of accurate ID to verify a person’s sex does highlight the precarious position of women who use the gym outside normal hours where access to the female changing room is via a PIN.

New content on defining sex at birth

2.3.1 Sex is a protected characteristic and refers to a male or a female of any age. In relation to a group of people it refers to either men and / or boys, or women and / or girls (s.11(a) and (b) and s.212(1)).

2.3.2 The Supreme Court in For Women Scotland ruled that ‘sex’, ‘woman’ and ‘man’ in the Act mean biological sex, biological woman and biological man. This is the sex of a person at birth.

2.3.3 A Gender Recognition Certificate (GRC) does not change a person’s sex for the purposes of the Act. Read paragraphs 2.1.1 to 2.1.9 for more information on GRCs. Read paragraphs 2.2.1 to 2.2.10 for more information about when and how it may be appropriate to request information or evidence of birth sex.

2.3.4 A comparator for the purposes of showing sex discrimination will be a person of the opposite sex. Sex does not include gender reassignment (read paragraphs 2.1.6 to 2.1.9) or sexual orientation (read paragraphs 2.4.1 to 2.4.6).

2.3.5 There are specific provisions which apply where the treatment of a woman is because of her pregnancy and maternity, or because she is breastfeeding (s.13(6)(a) and s.13(7)).

The explanation of the legal rights and responsibilities set out in the new content on defining sex at birth is clear.

AGREE

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

The addition of “This is the sex of a person at birth” in 2.3.2 is not necessary but, as per the Sullivan Review, some people may find it provides additional guidance on how to answer a question on their sex.

As additional guidance however it should not be in section title, which should simply say “New content on defining sex”.

2.4 Updated description of the protected characteristic of sexual orientation

2.4.1 Sexual orientation is a protected characteristic (s.12(1)). It means a person’s sexual orientation towards:

persons of the same sex (the person is a lesbian woman or a gay man)

persons of the opposite sex (the person is heterosexual)

persons of either sex (the person is bisexual)

2.4.2 Sexual orientation relates to how people feel as well as their actions.

2.4.3 Sexual orientation discrimination includes discrimination because someone is of a particular sexual orientation, and it also covers discrimination connected with manifestations of that sexual orientation. These may include someone’s appearance, the places they visit or the people they associate with.

2.4.5 When the Act refers to the protected characteristic of sexual orientation (s.12(2)), it means the following:

a reference to a person who has a particular protected characteristic is a reference to a person who is of a particular sexual orientation

a reference to people who share a protected characteristic is a reference to people who are of the same sexual orientation

2.4.6 Gender reassignment is a separate protected characteristic and unrelated to sexual orientation, despite often being grouped together (for example under the acronym ‘LGBTQ+ people’).

The explanation of the legal rights and responsibilities set out in the updated description of the protected characteristic of sexual orientation is clear.

AGREE

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

An example under 2.4.6 to show that a service or association for lesbians or gay men must exclude those of the opposite sex, including those with the protected characteristic of gender reassignment, would be helpful.

4.1 New example on sex discrimination by perception

4.1.1 It is direct discrimination if service providers, those exercising public functions or associations treat an individual less favourably because the service providers, those exercising public functions or associations perceive that the individual has a protected characteristic even if they do not. However, this does not apply to the protected characteristic of pregnancy and maternity.

4.1.2 Example. People with certain Irish surnames are subjected to more stringent checks by a holiday company and then excluded from making holiday bookings because they are assumed to be Irish Travellers. This is less favourable treatment because of race.

4.1.3 Example. A trans woman is a member of an association and applies to become treasurer, but her application is rejected. She is told by the Chairman that this is because they want a man to take the role on as they do not think a woman could do the job as well. This is less favourable treatment because of sex. The trans woman would have a claim for direct discrimination because of her perceived sex as a woman. The fact that she is not a woman under the Equality Act 2010 would not prevent her bringing this claim of sex discrimination.

The explanation of the legal rights and responsibilities set out in the new example on sex discrimination by perception are clear.

AGREE

4.2 Removed reference to superseded caselaw

We removed content that explained that, for trans men holding a Gender Recognition Certificate (GRC), the protection from pregnancy and maternity discrimination under the Equality Act 2010 (the Act) arose from case law. This case law set out that trans men were still protected irrespective of them having a GRC that stated that their legal sex was male. Following the For Women Scotland ruling, their legal sex is now female for the purposes of the Act, and they therefore have protection on that basis.

Updated content

Discrimination because of pregnancy and maternity

4.2.1 The Act provides protection against discrimination because of pregnancy and maternity in the provision of services, the exercise of public functions and in associations (s.17).

4.2.2 When explaining these provisions, we use the same language as the Act, which refers to discrimination against women on the grounds of pregnancy and maternity. The pregnancy and maternity provisions in the Act apply on the basis of biological sex and so trans men are included in the protections against discrimination provided by these provisions.

The explanation of the legal rights and responsibilities set out in Change 4.2 is clear.

AGREE

5.1 New example on sex discrimination – same disadvantage

Indirect discrimination: same disadvantage

5.1.1 Indirect discrimination may also occur when an individual without the relevant protected characteristic experiences disadvantage alongside persons with the relevant protected characteristic. Provided that a discriminatory provision, criterion or practice puts, or would put, them at substantively the same disadvantage as people who share the relevant protected characteristic, such an individual may bring a claim for ‘same disadvantage’ indirect discrimination (s.19A). Objective justification applies to same disadvantage indirect discrimination.

5.1.2 Although this type of indirect discrimination is sometimes referred to as ‘associative indirect discrimination’, it is not necessary for there to be any relationship or association between the group with the relevant protected characteristic and the individual who does not share it. Rather, the individual without the relevant protected characteristic must be able to show that the disadvantage they experience is essentially the same as that experienced by the group sharing the protected characteristic and it arises from the same provision, criteria or practice.

5.1.3 Example. A local council holds its public consultation meetings on a weekday evening in an area regarded as unsafe for women. It discovers that fewer women than men attend. A woman complains that this is because many women cannot come because of safety concerns, including herself. This kind of disadvantage is more likely to apply to women as a group and will amount to indirect discrimination against women, unless the council can justify its policy.

People who do not share the same protected characteristic but who may also feel unsafe for similar reasons could experience disadvantage that is essentially the same. For example, a trans woman who feels unsafe in the area where the consultation meetings are held because they present as a woman would also have a claim for indirect discrimination, if the council is unable to justify its policy.

The explanation of the legal rights and responsibilities set out in the new example on sex discrimination – same disadvantage is clear.

AGREE

8.1: Updated example on harassment related to sex

8.1.3 Example. A woman using the gym equipment in her local leisure centre is regularly subjected to comments from male staff members such as ‘watch what you say in front of her, it’s her time of the month again’. This could amount to harassment related to sex.

8.1.6 An individual does not have to possess the relevant protected characteristic themselves for protection from harassment to arise. This can happen in several different situations.

a. An individual may be associated with someone who has a protected characteristic.
b. An individual may be wrongly perceived as having a particular protected characteristic.

Example. A trans woman using the gym equipment in her local leisure centre is regularly subjected to comments from male staff members such as ‘watch what you say in front of her, it’s her time of the month again’. As with the example at 8.1.3, this could amount to harassment. However, in this example, the harassment would be related to the trans woman’s perceived sex.

The explanation of the legal rights and responsibilities set out in the updated example on harassment related to sex is clear.

AGREE

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

It is important that an example is provided to make it clear that where separate sex services are provided but not upheld by service users or service providers, harassment related to sex is likely to occur.

12.1: New example on women-only associations

12.1.1 The Equality Act 2010 (the Act) permits associations, other than political parties, to restrict their membership to persons who share a protected characteristic (Sch. 16). The only exception is that membership can never be restricted based on colour (Sch. 16 paragraph 1(4)).

12.1.3 Example: A trans woman applies to join a women-only association and her application is refused. This would be lawful because membership is based on sex and restricted to women and, under the Act, she does not share that protected characteristic (read about this in the changes to chapter 2 (paragraphs 2.3.1 to 2.3.5).

The explanation of the legal rights and responsibilities set out in the new example on women-only associations is clear.

AGREE

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

The use of “she” is confusing. Either say “he” or clarify that “under the Act, a transwoman is male and does not share that protected characteristic”.

The example should made it clear that a wide range of associations can be single-sex, such as reading groups, recreational activities such as walking groups, or support groups.

13.1: Updated section on competitive sport

13.1.1 The Act includes four types of exceptions that may apply in relation to the participation of a competitor in a sport, game or other activity of a competitive nature (s.195). These relate to sex, gender reassignment, nationality or birthplace, and age.

Competitive sport – sex

13.1.2 It is not a breach of the Act for a person to organise single-sex or separate-sex events for male and female competitors in a sport, game or other activity of a competitive nature in specific circumstances (s.195(1) and (3)). These circumstances are where an average person of one sex would be at a disadvantage as a competitor against an average person of the other sex due to their physical strength, stamina or physique (referred to in the Act as a ‘gender-affected activity’). Where there is no disadvantage due to these factors, organising single-sex or separate-sex events may be unlawful sex discrimination.

13.1.3 Example. The organisers of a 5-a-side football event decide that it is necessary to hold separate competitions for men and women. This is likely to be permitted under the Act. Physical strength, stamina and physique are all significant factors in 5-a-side football match. An average man has an advantage compared to an average woman because men are on average taller and stronger and have more overall muscle mass than women.

13.1.4 This exception also applies to children’s sport (s.195(4)). However, organisers must consider whether there are significant differences in physical strength, stamina or physique at the age and stage of development of the children competing in the activity.

13.1.5 Example. A primary school only has a boys’ under-7 football team as there are not enough girls for a full team. A girl requests to join the team. It may be unlawful to decline this request unless the school can demonstrate that there are differences in physical strength, stamina or physique between boys and girls under 7 years old that would disadvantage girls taking part in football. Examples of disadvantage could be unfair competition or risks to health and safety.

Competitive sport – gender reassignment

13.1.6 In the context of a gender-affected activity (read paragraph 13.1.2), the Act allows trans people to be excluded from an event or treated differently, which would otherwise constitute unlawful gender reassignment discrimination, when necessary for reasons of safety or fair competition. If it is not necessary for these reasons, it is likely to be unlawful to exclude trans people.

13.1.7 Consequently, if a person is organising single-sex or separate-sex events for men and women in a gender-affected activity, they should consider their approach to trans competitors’ access to the service (s.19 and s.195(2)).

13.1.8 Direct gender reassignment discrimination can occur if a policy or decision to restrict participation of trans people is made on the grounds of gender reassignment.

13.1.9 This would be the case, for example, if a trans man, who is a woman under the Act, is excluded from a women’s event because of his gender reassignment characteristic. Read our changes to chapter 2 for more information on the meaning of gender reassignment.

13.1.10 Indirect gender reassignment discrimination can occur if a provision, criterion or practice puts trans people (including the individual trans person concerned) at a particular disadvantage compared to people who are not trans and it cannot be justified.

13.1.11 However, in the context of a gender-affected activity, the Act provides an exception to a claim of gender reassignment discrimination if a person restricts participation of a trans person in a gender-affected activity and can show it is necessary to do so for reasons of fair competition or the safety of competitors (s.195(2)).

13.1.12 This means that organisers can prevent trans people from participating in a gender-affected sporting activity if it is necessary to do so because their participation would create a competitive advantage or disadvantage, or would potentially endanger their own safety or that of other participants.

13.1.13 Example. A boxing gym runs a boxing competition for men. A trans man wishes to compete. The gym declines his request because they are concerned about the safety of trans men taking part in the full-contact sparring with men due to physiological differences. This is likely to be lawful if the gym can demonstrate that that there would be a genuine health and safety risk if trans men were allowed to join the competition.

13.1.14 In some circumstances, limiting, modifying or excluding the participation of trans people for the reasons of fair competition or safety may be necessary to avoid discrimination against other competitors. Section 195(1) provides organisers of separate sporting events for men and women with an exception for sex discrimination when providing separate men’s and women’s events. The law on the interpretation of this provision is not settled and there is therefore uncertainty as to how this provision applies.

13.1.15 Section 195(1) is likely to only apply where a person has decided to organise the gender-affected activity as a single-sex or separate-sex event. A claim of direct or indirect sex discrimination cannot be brought about the participation of a person in an event which has been organised as a single-sex or separate-sex event.

13.1.16 Where an organiser chooses to offer a mixed-sex gender-affected activity, then this activity is not protected by the exception in section 195(1) and participants may bring claims of direct and indirect sex discrimination about it.

13.1.17 Example. An athletics club chooses to organise an athletics event that includes women and trans women. The trans women who participate are significantly faster and have a physical advantage. A woman may be able to bring a claim for indirect sex discrimination due to the provider’s decision not to limit or modify the participation of trans women placing her at a particular disadvantage.

13.1.18 Given the physiological differences between men and women, it will often be necessary for organisations to develop general policies to guide and inform their decision making in this area. Policies should be supported by a clear rationale and evidence base, and will often wish to draw upon guidance from sporting authorities. Relevant factors may include:

whether an activity is primarily competitive, or competitive but with a significant social and recreational purpose, and whether it is a mass participation event

whether there are safety risk factors such as those arising from physical contact between men and women

the extent to which there are competitive advantages arising from sex-based physiological factors such as physical strength, stamina or physique

whether such competitive advantage can be sufficiently reduced through medical intervention, such as drugs to reduce levels of testosterone, to make the competition fair.

The explanation of the legal rights and responsibilities set out in the updated section on competitive sport is clear.

STRONGLY DISAGREE

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

There is no doubt that football is a gender-affected sport where there is a male advantage so the example in 13.1.3 should state that separate competitions for men and women “is permitted” under the Act, and not “is likely to be permitted”. It should be clearly stated here that transwomen (males) are included in the men’s team and transmen (females) in the women’s team (unless the gender reassignment exception at s195(2) applies).

The final sentence in 13.1.6 should clarify that, in such circumstances, it would be unlawful to exclude trans people from the single-sex sport for their biological sex.

The example at 13.1.13 should make it clear that a transman is female.

13.1.14 states that the law on interpretation of s195(1) is not settled and there is uncertainty as to how this provision applies. This is not correct. Paragraph 234 of the Supreme Court judgment states it is “plainly predicated on biological sex” and then lays out how it applies in relation to boxing, a sport that meets the gateway conditions of male advantage in s195(3).

13.1.17 gives an example of a gender-affected sport for women and transwomen (males). This is not lawful and is comparable to a women’s changing room including transwomen (males). Provision is either single-sex in which case transwomen (males) are excluded from the women’s event, or mixed sex in which case transwomen and all other males are included. The Code of Practice should not be suggesting otherwise.

13.1.18 does not accurately reflect the Equality Act. All that is relevant in deciding to hold separate sex events is that given in s195(3), ie. whether in the sport, game or other activity of a competitive nature, the average physical strength, stamina or physique of one sex would put them at a disadvantage compared to the other. The degree of competitiveness or whether it also has a social or recreational purpose does not matter. This applies at grassroots level as much as elite competitions and it should also be made clear that sports associations do not need to be competitive to be single-sex and organisations may wish to make use of positive actions to, for example, increase female participation.

The section on whether competitive advantage can be reduced through medical intervention such as testosterone suppression is worrying and outwith the scope of the Equality Act. All evidence to date concludes that this is not possible and the extent of any advantage is not relevant. Nothing a male can do will change his sex, and being a woman under the Equality Act is the only criteria of entry. The Code of Practice should not be suggesting this is at all feasible, particularly when the IOC and most sporting bodies are introducing cheek swabs for sex screening as the eligibility criteria for women’s events.

13.2: Updated section on separate and single-sex services for men and women

13.2.1 The Equality Act 2010 (the Act) contains specific exceptions (discussed in this section) which allow service providers and, in certain cases, those exercising public functions (s.31(3)), to provide services:

separately and / or differently for women and men

exclusively for women

exclusively for men

to people of a particular age group (in certain circumstances)

13.2.2 If a service is generally provided only for persons who share a protected characteristic, a person who normally provides that service can (Sch 3 paragraph 30):

insist on providing it in a way they normally provide it

refuse to provide the service to people who do not share that protected characteristic, if they reasonably think it is impracticable to provide it

Separate services for women and men

13.2.3 The Act (Sch 3 paragraph 26(1)) does not prohibit sex discrimination where a service provider (including a person providing a service in the exercise of public functions (s.31(3)) offers separate services for men and women in specific circumstances. It is lawful to provide separate-sex services if:

a joint service for women and men would be less effective, and

providing the service separately to women and men is a proportionate means of achieving a legitimate aim

13.2.4 If these conditions do not apply, the provision of separate-sex services is likely to be unlawful sex discrimination.

13.2.5 The Act (Sch 3 paragraph 26(2)) also does not prohibit sex discrimination where a service provider (including a person providing a service in the exercise of public functions) provides separate services for each sex in a different way, if:

a joint service for persons of both sexes would be less effective, or

the extent to which the service is required by one sex makes it not reasonably practicable to provide the service other than separately and differently for each sex, and

the limited provision of the service is a proportionate means of achieving a legitimate aim

13.2.6 Example. A domestic violence support unit is set up by a local authority for women and men separately as they are aware that service users feel safer and more comfortable attending a single-sex group. There is less demand for the men’s group, which meets less frequently.

13.2.7 The Act (Sch 3 paragraph 26(3)) also does not prohibit sex discrimination where a service provider (including a person providing a service in the exercise of public functions) does anything in relation to the provision of separate services, or services provided differently for women and men, for the reasons set out in paragraph 13.2.5.

13.2.8 Example. A local authority allocates funding for a primary care trust to contract with a voluntary sector organisation to provide counselling for women who have had a mastectomy.

13.2.9 Read paragraphs 13.3.1 to 13.3.20 for the considerations relevant to whether a separate-sex service, or anything done in relation to it, is a proportionate means of achieving a legitimate aim.

Single-sex services

13.2.10 The Act (Sch 3 paragraph 27) does not prohibit sex discrimination where a service provider (including a person providing a service in the exercise of public functions) provides a service exclusively to one sex, if doing so is a proportionate means of achieving a legitimate aim and at least one of the conditions in paragraphs 13.99 to 13.109 applies.

13.2.11 Condition 1: Only people of that sex need the service.

13.2.12 Condition 2: A service that is provided jointly for both sexes is not sufficiently effective without providing an additional service exclusively for one sex.

13.2.13 Example. A gym provides weightlifting classes to all its customers, but few women join the class, so it also provides an additional single-sex weightlifting class for women to encourage women to use the service.

13.2.14 Condition 3: A service provided for men and women jointly would not be as effective, and the demand for the services makes it not reasonably practicable to provide separate services for each sex.

13.2.15 Example. A support unit for women who have experienced domestic or sexual violence can be established, even if there is no men’s unit established because there is insufficient demand to make it reasonably practical to provide a separate service for men.

13.2.16 Condition 4: The service is provided at a hospital or other place where users need special care, supervision or attention.

13.2.17 Example. A hospital chooses to provide a single-sex hospital ward for women patients to protect their safety, privacy and dignity. The hospital supports this decision by noting that the ward in question does not fit its criteria for the small number of circumstances where mixed-sex accommodation may be acceptable.

13.2.18 Condition 5: The service is for, or is likely to be used by, more than one person at the same time and a woman might reasonably object to the presence of a man, or vice versa.

It is likely to be reasonable for a woman to object to the presence of a man if she will be getting undressed or in a vulnerable situation when she is using the service.

13.2.19 Example. Women-only communal changing rooms in a sports facility.

13.2.20 Condition 6: The service is likely to involve physical contact between the service user and another person and that other person might reasonably object if the service user is of the opposite sex.

In this condition, limited and non-intimate physical contact is unlikely to justify single-sex provision. For instance, the fact that in first aid training there may be some physical contact between participants in the classes is unlikely to warrant the provision of single-sex sessions.

13.2.21 Example. A female carer only provides intimate personal care to female clients as she is uncomfortable providing this type of care to men in a domestic environment.

13.2.22 Where a service provider (including a person providing a service in the exercise of public functions) does anything in relation to the provision of single-sex services, this will be lawful provided that one of conditions 1 to 6 is met, and that providing the service on a single-sex basis is a proportionate means of achieving a legitimate aim.

13.2.23 Read paragraphs 13.3.1 to 13.3.20 for the considerations relevant to whether a single-sex service, or anything done in relation to it, is a proportionate means of achieving a legitimate aim.

The explanation of the legal rights and responsibilities set out in the updated section on separate and single-sex services for men and women is clear.

AGREE

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

The double negative in “The Act does not prohibit sex discrimination…” is cumbersome.

13.3: New section on justification for separate and single-sex services

13.3.1 When providing a separate or single-sex service, a service provider (including a person providing a service in the exercise of public functions) must be able to demonstrate that doing so is a proportionate means of achieving a legitimate aim.

13.3.2 An example of a legitimate aim for providing a separate or single-sex service could be ensuring the safety of women or the privacy and dignity of women and / or men. The service provider (including a person providing a service in the exercise of public functions) must show that providing the service only to one sex or separately to both sexes is a proportionate way to achieve the aim.

13.3.3 When considering whether providing a separate or single-sex service is proportionate, the service provider (including a person providing a service in the exercise of public functions) should consider all potential service users and whether there is a fair balance between:

the benefits of offering the service as a separate or single-sex service, and

the needs of those who are accessing it, and

the impact on those who are excluded from accessing it

13.3.4 When considering the benefits of offering a separate or single-sex service, the service provider (including a person providing a service in the exercise of public functions) should think about whether women’s safety, privacy and / or dignity would be at risk in the service if it was shared with men.Taking the example of offering a single-sex service for women, the service provider should consider factors such as:

whether women are likely to be in a state of undress

whether there will be limited ability for women to leave or to choose an alternative service

whether the service is provided a result of, or connected with, male violence against women

whether the physical differences between men and women are relevant to the experience of the service and put women at a particular disadvantage

Where factors like these are present, the benefits of offering a separate or single-sex service will be likely to outweigh other considerations in the balancing exercise.

13.3.5 The needs of potential service users include the specific needs of people with different protected characteristics, such as older people, disabled people and those who observe particular religious practices. For example, Muslim people may have a particular need for separate-sex services to observe the requirements of their faith.

13.3.6 Example. A swimming class provider runs classes at a swimming centre that caters to the local community, including Muslim people. The swimming class provider operates a mix of services with some separate-sex classes, which are used predominantly by Muslim women and men, as well as mixed-sex classes which are open to everybody. The swimming class provider has considered the impact of the mix of its services across different protected characteristics and determined that its balanced mix of services is proportionate. The provision made is therefore likely to be lawful.

13.3.7 The impact on those who will be excluded from the service includes both the impact on people of the opposite biological sex generally and the particular impact on trans people of the opposite biological sex. In separate or single-sex services, a trans man will be excluded from the men-only service because his biological sex is female, and a trans woman will be excluded from the women-only service because her biological sex is male. Trans people are likely to be disadvantaged by this, by comparison to people who are not trans.

13.3.8 The service provider (or person providing a service in the exercise of public functions) should consider whether the disadvantage to trans people, and any other people who may be disadvantaged, outweighs the benefits of achieving the legitimate aim. They should also consider whether there is a less intrusive option than excluding trans people which would be proportionate (read 13.4.4 to 13.4.8).

13.3.9 Having carried out this balancing exercise, the service provider (including a person providing a service in the exercise of public functions) may conclude that arrangements or adaptions can be made to meet the needs of all service users, or that it remains proportionate to maintain only a separate or single-sex service.

13.3.10 In many cases, it will be proportionate to take a holistic approach to service provision by providing a mix of services which may include both separate or single-sex services and mixed-sex services. The mix of services in terms of the size of the separate or single-sex services and of the mixed-sex services should reflect the needs and relative numbers of service users with different needs.

13.3.11 Example. A service provider operates a shopping centre and decides to renovate the centre. It initially intends to only provide separate-sex toilets to improve the safety and comfort of users. This disadvantages trans people because it means that a trans person cannot access a toilet catered towards their acquired gender. The service provider therefore decides to also provide toilets in individual lockable rooms which can be used by people of either sex.

13.3.12 Example. A community group is opening a small advice centre. It decides to provide separate-sex toilets for women and men, and it repurposes the accessible toilet to be used as a mixed-sex toilet for anybody who does not wish to use the toilet for their biological sex. This is likely to be proportionate given the size and resources of the centre and takes into account the needs of all the potential service users.

13.3.13 Example. A local gym organises weightlifting induction classes designed to teach users of the gym proper techniques and safety measures. The classes are in high demand and are well attended. A small number of women request women-only classes, as they feel uncomfortable in the mixed-sex service. The gym amends its schedule to offer one induction class a fortnight to cater to this request, which it considers to be proportionate to the needs of service users and the relative demand. This is likely to be lawful because it has balanced the needs of different service users and provided a proportionate mix of services.

13.3.14 However, it may be that offering alternative arrangements is not reasonably possible for the service provider (including a person providing a service in the exercise of public functions) or that doing so would undermine the service that is being provided. This may be because of the type of service being provided, the needs of the service users, the physical constraints of any building, or because of the disproportionate financial costs associated with making those arrangements.

13.3.15 Example. In the example in paragraph 13.3.13, the women who have requested women-only classes also ask for single-sex changing rooms. The gym is in a small, shared studio space which provides mixed changing facilities with private cubicles for changing. The cubicles have floor to ceiling lockable doors and there have been no complaints about inappropriate conduct in the changing rooms. The service provider determines that providing single-sex changing rooms is impractical because of space constraints and the disproportionate cost. Since the existing changing rooms enable users to change in privacy, the current arrangement is likely to be proportionate and lawful.

13.3.16 Example. A women’s centre provides a gym predominantly used by Jewish women who have religious objections to sharing a gym with men. The gym considers whether to open the gym to men on certain days, or to open the gym on a mixed-sex basis on certain days.

13.3.17 However, the centre decides to offer the gym only to women because the overwhelming demand for the service is from Jewish women and there are numerous other gyms in the area that cater to men and trans people. This service would exclude men and trans women, but it is likely to be proportionate and lawful.

13.3.18 It is good practice to record the reasons why a decision has been taken to provide or not to provide a separate or single-sex service, along with any supporting evidence.

13.3.19 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 biological sex, then it can no longer rely on the exceptions set out at paragraphs 13.2.3 to 13.2.22. This means that if a service is provided only to women and trans women or only to men and trans men, it is not a separate-sex or single-sex service under the Equality Act 2010. A service like 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. Similar considerations would apply to a service provided for men and trans men.

13.3.20 Similarly, if a service provider (including a person providing a service in the exercise of public functions) decides only to provide a service on a mixed-sex basis, without any separate or single-sex option, this could be direct or indirect sex discrimination against women who use the service or lead to unlawful harassment against them. This is most likely in contexts like those referred to in paragraph 13.3.4.

The explanation of the legal rights and responsibilities set out in the new section on justification for separate and single-sex services is clear.

DISAGREE

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

In 13.3.8 a single-sex service is justified if it meets the conditions in Sch 3 paragraph 27 of the Equality Act. It is legal at this point and there is no need to conduct a further test which may “outweigh” its lawfulness.

It is unclear what is meant by mixed sex services in 13.3.10. If there is justification for single-sex services then it is difficult to see how additional mixed sex (used by both men and women), rather than individual single user facilities (used by either sex), would be appropriate as they would create an environment where harassment related to sex is likely.

The use of “acquired gender” in 13.3.11 is confusing because only those trans people with a GRC have an acquired gender – it is a phrase used in s9(1) of the GRA but not in s7 of the Equality Act. Improving the safety and comfort of users is a legitimate and proportional reason to provide separate sex toilets, in and of itself, with no further balancing test required. In any case, the service provider should not resolve any disadvantage for those with gender reassignment without considering how the alternative provision impacts on those with other protected characteristics such as disability and their access to suitable facilities. There is evidence that only individual single user provision is less safe for women and girls than communal single-sex provision, or for those with medical conditions who may collapse unnoticed by others.

Care should be taken with the example in 13.3.12 as accessible toilets are for those who need them, not for those with no disabilities who wish to use them. According to Scottish Trans the majority of participants in their study (67%) considered themselves to be disabled (https://www.scottishtrans.org/wp-content/uploads/2024/07/Scottish-Trans-and-Nonbinary-Experiences-Summary-Report.pdf), so it may be the case that many trans people already use accessible toilets. The example given may not result in a negative impact on other protected characteristics but further independent research is needed, and trans organisations may wish to advocate for additional individual, but not provision with accessible signage, particularly in larger buildings.

Evidence has shown that more incidents of sexual assault, flashing and voyeurism, unsurprisingly, takes place in mixed sex rather than single-sex changing rooms. Many go unreported and the Code of Practice should not be suggesting in 13.3.15 that a lack of complaints means a lack of incidents. Women are often hesitant to report and may self-exclude from using the service. Duty-bearers should be aware of the increased opportunity for recording devices to be hidden in unisex cubicles/rooms and the disproportionate impact such facilities have on women may amount to indirect discrimination.

Overall, this section makes it seem difficult for duty-bearers to provide separate or single-sex services rather than giving confidence that these are common, everyday services. The Code of Practice should clarify that blanket rules excluding the opposite sex (along with trans people of that biological sex) are lawful and that case-by-case assessment is not required.

13.4: New content on policies and exceptions for separate and single-sex services

13.4.1 It will usually be helpful and often necessary for service providers (including a person providing a service in the exercise of public functions) to have a policy setting out whether, and if so how, separate or single-sex services will be provided. When developing a policy, the service provider should consider how the policy should apply in different circumstances to ensure appropriate consideration of all affected interests and provide transparency for service users.

13.4.2 However, individual circumstances may, exceptionally, require a different approach to that set out in a policy. The law in this area is complex, and it is not certain that it is permissible to make exceptions to allow people of the opposite sex to use a separate or single-sex service. It is likely, however, that this will be permissible if doing so adds a necessary flexibility without undermining the aim of the service and / or contributes towards achieving the aim.

13.4.3 Example. A council swimming pool has separate men’s and women’s changing rooms. One of the aims of having separate-sex changing rooms is to safeguard women’s ability to access the facilities and use them safely. A woman is allowed to take her male child under the age of ten into the women’s changing room. This does not undermine the aim, because it is unlikely that young boys pose a threat to women’s safety. It also contributes towards achieving the aim, because fewer women would be able to use the swimming pool if they could not bring their children with them.

13.4.4 In most situations, when a potential service user wishes to access a single-sex service for the opposite biological sex, the service provider (including a person providing a service in the exercise of public functions) should consider whether it can accommodate the needs of the service user in a way which achieves a fair balance without compromising the single-sex nature of the service.

13.4.5 The service provider (including a person providing a service in the exercise of public functions) should consider whether it can offer a separate service to that individual and others in similar circumstances. If it is possible to do so, the service will remain a single or separate-sex service, with an additional separate service for those that share that individual’s circumstances.

13.4.6 For example, if a leisure centre offers women-only water aerobics sessions, and it is approached by a man who would like to access the service, the leisure centre should consider whether it could offer a water aerobics session that is also open to men at a different time or on a different day. If it is possible to do so, the service would remain a separate or single-sex service, but with an additional separate service that is also open to men.

13.4.7 Another example of a less intrusive measure would be adapting a service to enable the service to be used by people of both sexes. For example, it may be possible to offer toilets in individual lockable rooms to be used by both sexes.

13.4.8 It may be that offering alternative arrangements is not reasonably possible for the service provider (or person providing a service in the exercise of public functions) or that doing so would undermine the service that is being provided. This may be because of the type of service being provided, the needs of the service users, the physical constraints of any building, or because of the disproportionate financial costs associated with making those arrangements. The service provider may take account of the fact that if it admits the individual it may cease to be a separate or single-sex service (read paragraph 13.3.19).

The explanation of the legal rights and responsibilities set out in the new content on policies and exceptions for separate and single-sex services is clear.

STRONGLY DISAGREE

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

The Equality Act is clear that the exceptions in Sch 3 allow for single-sex services on the ordinary, biological meaning of sex. 13.4.2 suggests there are exceptions to these exceptions which permit this to be over-ridden to allow access by someone of the opposite sex. This is incorrect, the law in this area is clear and there is no basis for case-by-case consideration. Paragraph 36 of FWS1 states “Thus an exception…relating to the inclusion of women, as having a protected characteristic of sex, is limited to allowing provision to be made in respect of a “female of any age”. Provisions in favour of women, in this context, by definition exclude those who are biologically male.” This was upheld by the Supreme Court in paragraph 171: “provisions that refer to protection for women necessarily exclude men” and paragraph 221: “the female only nature of the service would engage paragraph 27 and would permit the exclusion of all males including males living in the female gender regardless of GRC status”.

Parents using a single-sex service, accompanied by their young dependent children, regardless of their sex, is not a “different approach to that set out in a policy”. Adults can often only use the service if they bring their young children and the service remains a single-sex service for adults.

This section should be tightened, or this example removed, as it risks incorrectly suggesting that trans people may have grounds to access the opposite sex services.

13.5: Updated section on separate or single-sex services in relation to gender reassignment

13.5.1 If a service provider (including a person providing a service in the exercise of public functions) is considering providing a separate or single-sex service, they should consider their approach to trans people’s use of the service.

13.5.2 The impact of separate or single-sex services on trans people should be considered when the service provider is deciding whether it is justified to have a separate or single-sex service in the first place. Read paragraphs 13.3.8 to 13.3.20 for further information on this.

13.5.3 If a service provider (including a person providing a service in the exercise of public functions) decides to have a separate or single-sex service and allows trans people to use the service intended for the opposite biological sex, the service will no longer be a separate or single-sex service under the Equality Act 2010 (the Act). It is also very likely to amount to unlawful discrimination against others (read paragraph 13.3.19).

13.5.4 If it is justified to provide a separate or single-sex service, then it will not be unlawful discrimination because of gender reassignment to prevent, limit or modify trans people’s access to the service for their own biological sex, as long as doing so is a proportionate means of achieving a legitimate aim (Sch 3 paragraph 28).

13.5.5 For example, a trans man might be excluded from the women-only service if the service provider decides that, because he presents as a man, other service users could reasonably object to his presence, and it is a proportionate means of achieving a legitimate aim to exclude him.

13.5.6 A legitimate aim for excluding a trans person from a separate or single-sex service for their own biological sex might be to prevent alarm or distress for other service users. Whether it is reasonable to think that the presence in that service of the trans person will cause alarm or distress will depend on all the circumstances, including the extent to which the trans person presents as the opposite sex. For this reason, a service provider (including a person providing a service in the exercise of public functions) should only consider doing this on a case-by-case basis.

13.5.7 The service provider should consider whether there is a suitable alternative service for the trans person to use. In the case of services which are necessary for everybody, such as toilets, it is very unlikely to be proportionate to put a trans person in a position where there is no service that they are allowed to use.

13.5.8 If the service provider does not act proportionately, this is very likely to amount to direct or indirect discrimination because of gender reassignment (s.13 and s.19).

13.5.9 Example. Group counselling sessions are provided for female survivors of domestic violence. The service provider excludes a trans man from the sessions because he presents as a man and the service provider is concerned that women service users could reasonably be alarmed or distressed by his presence.

The service provider’s decision to exclude the trans man from the service could amount to direct gender reassignment discrimination because he has been treated less favourably than a woman without the protected characteristic of gender reassignment. However, in this situation the service provider is likely to be able to rely on the exception from liability explained in paragraph 13.5.4, because the decision to exclude the trans man was proportionate.

13.5.10 If the nature of a service means that it is only, or generally, used by women or by men, this does not mean that it is necessarily a separate or single-sex service under the Act. A service like this does not need to operate according to the rules and principles described in paragraphs 13.2.10 to 13.5.9. However, the Act (Sch 3 paragraph 30) contains a different exception which means that, in services of this sort, it will not be unlawful discrimination if the service provider refuses to serve a person of the opposite sex, if it would be impracticable to provide the service to that person. The service provider can also refuse to adjust the way in which the service is provided to cater for a person of the opposite sex. This exception applies to all protected characteristics in the Act, not just sex.

13.5.11 Example. A hospital provides an Obstetrics and Gynaecology outpatient service. Only women and trans men need to use the service. The hospital provides the service to women and trans men in a way which preserves all users’ privacy and dignity.

The hospital can refuse to allow a man or a trans woman to access the service because it does not offer any treatment which is suitable. This means that it would be impracticable to treat a man or a trans woman. It could also be impracticable to do so if it would impact on the privacy and dignity of the women and trans men who use the service.

The hospital can also refuse to adjust the way in which it provides the service.

13.5.12 Example. A trans man attends a gym frequently and uses the women’s changing room, consistent with his biological sex. If the gym owner decides that he can no longer use the women’s changing room and there is no other changing room he can use this may be a disproportionate decision. If it is disproportionate, the gym owner will not be able to rely on the exception for gender reassignment discrimination (Sch 3 paragraph 28). The trans man will be able to bring a complaint of direct gender reassignment discrimination, because he has been treated less favourably than a woman who does not have the protected characteristic of gender reassignment.

The explanation of the legal rights and responsibilities set out in the updated section on separate or single-sex services in relation to gender reassignment is clear.

STRONGLY DISAGREE

Is there anything you would change to make the explanation of the legal rights and responsibilities in this update clearer?

The decision whether to have a separate or single-sex service stands on its own grounds according to whether it meets the conditions in Sch 3. Deciding whether it is prudent to offer different or additional services for trans people is a separate decision and has no bearing or impact on the decision justifying single-sex provision.

13.5.3 should be clearer. Services are either single-sex or mixed-sex. If a service provider allows trans people to use the service intended for the opposite biological sex, it should be clarified that the service is now a mixed sex service and this should be made clear to other service users and all members of the opposite sex should be permitted access. This may also constitute harassment related to sex.

13.5.5 should make it clear that a transman is female.

The example in 13.5.9 should make it clear that while a transman (female) may be excluded from a women-only group counselling session, the service provider should, in most instances, be able to offer an alternative service such as individual counselling.

It is not necessary to say “women and trans men” as it amounts to the ridiculous statement “women and other women”. It seems an odd example to use as an Obstetrics and Gynaecology service is clearly only for women and there would be no question on the lawfulness of excluding men. A more meaningful example would be a women-only rape crisis centre where the overwhelming number of victims are women and specialist counselling for women is offered. While men also experience rape, it would be impracticable for the centre to include them as they may not have the specialist skills and it would impact on users’ privacy and dignity. The centre can refuse to adjust the way in which it provides the service.

13.6: Updated content on communal accommodation

13.6.1 The Act does not prohibit sex discrimination or gender reassignment discrimination where a person does anything in relation to admitting persons to communal accommodation, or providing any benefit, facility or service linked to the accommodation (Sch 23 paragraph 3(1)). This exception applies if the criteria set out in paragraphs 13.6.4 to 13.6.6 are satisfied.

13.6.2 ‘Communal accommodation’ is residential accommodation which includes dormitories or other shared sleeping accommodation which, for reasons of privacy, should be used only by persons of the same sex (Sch 23 paragraph 3(5) to (6)). It can also include:

shared sleeping accommodation for men and for women

ordinary sleeping accommodation

residential accommodation, all or part of which should only be used by persons of the same sex because of the nature of the sanitary facilities serving the accommodation

13.6.3 A benefit, facility or service is linked to communal accommodation if it cannot be properly and effectively provided except to those using the accommodation. It can only be refused to a person if they can lawfully be refused use of the accommodation (Sch 23 paragraph 3(7)).

13.6.4 This exception only applies if the communal accommodation is managed in a way that is as fair as possible to both women and men (Sch 23 paragraph 3(2)).

13.6.5 When excluding a person from use of communal accommodation because of sex or gender reassignment, the service provider, person exercising public functions or association must consider:

whether and how far it is reasonable to expect that the accommodation should be altered or extended or that further accommodation should be provided, and

the relative frequency of demand for the accommodation by persons of each sex (Sch 23 paragraph 3(3))

13.6.6 Excluding a person from use of communal accommodation provided for their own biological sex because of gender reassignment will only be lawful if it is a proportionate means of achieving a legitimate aim (Sch 23 paragraph 3(4)). The matters which a service provider, person exercising public functions or association should consider are similar to those set out in paragraphs 13.2.1 to 13.2.23.

The explanation of the legal rights and responsibilities set out in the updated content on communal accommodation is clear.

AGREE