- within Employment and HR topic(s)
- with Senior Company Executives, HR and Finance and Tax Executives
- with readers working within the Accounting & Consultancy, Business & Consumer Services and Insurance industries
Why indeed?
Bridget Phillipson has told The Times that she is moving "as fast as she can" to lay the guidance before Parliament. The updated EHRC code of practice remains unpublished many months after it was submitted to ministers, despite the "crystal clear" Supreme Court ruling in For Women Scotland in 2025 that sex means biological sex.
Phillipson's message to employers is that they should (and can) take action based on the Supreme Court ruling without waiting for the code of practice, but that is easier said than done. This is an area that causes much trepidation among employers and wider service providers, and one which has become the political football of our time.
The CIPD is holding fire and proposes not to update its advice until the statutory guidance is issued. The NHS Confederation has also stated that it will review its policies as soon as the new guidance emerges. Even the HM Courts and Tribunals Service intends to wait for the code. We are also aware, based on our live cases, that other public bodies are also waiting for the published guidance before they review their policies.
There has been a great deal of misinformation following For Women Scotland and a reluctance to acknowledge what the Supreme Court held in that case. The Good Law Project failed in its judicial review of the EHRC's interim update, but still, employers are unsurprisingly reluctant to take any steps absent the revised and published statutory code.
On the back of the failed judicial review, a group of over thirty leading lawyers and academics, including Didlaw CEO Karen Jackson and me, wrote to the Minister for Women and Equalities to warn against misinformation. You can read a copy of the letter in The Times here.
The EHRC has concluded its regulatory action following a review of policies identified through the call for input exercise on single-sex spaces. The EHRC website confirms:
"In August 2025, the EHRC wrote to 19 organisations identified through this exercise whose policies misrepresented the Equality Act 2010 by wrongly suggesting there is an automatic legal right to access single-sex spaces based on self-identification. These organisations spanned the policing, education and health sectors. All 19 organisations have now removed the policies in question."
For now, we continue to wait. You'll be the first to hear when the position changes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
