The Supreme Court has clarified that ‘sex’ in the Equality Act 2010 means biological sex. But until the Equality and Human Rights Commission (EHRC) updates its statutory Code of Practice, charities are operating in a ‘guidance gap’. In this explainer, we outline where things stand, the practical implications for governance and HR, and safe, proportionate steps charities can take now.

Background

Almost a year has passed since the Supreme Court decision in For Women Scotland Ltd v Scottish Ministers (FWS) (handed down in April 2025) and many charities are still navigating a complex and at times uncomfortable landscape as a result of the judgment. 

To recap, the judgment clarified that references to ‘sex’, ‘woman’, and ‘man’ in the Equality Act 2010 mean biological sex. The court stressed that this does not remove discrimination protections for people with the protected characteristic of gender reassignment, but confirms that sex‑based provisions in the Act (and exemptions) operate by reference to biological sex.

The EHRC, which acts as the regulator for matters falling under the Equality Act 2010 in the UK, briefly published interim guidance in the wake of the judgment, which was later withdrawn amid concerns about its clarity and effect. The EHRC began work to update its statutory Code of Practice for services, public functions and associations and ran consultations in 2024 and 2025. A revised draft Code was submitted to the UK Government on 4 September 2025 for approval before it can be laid before Parliament. In the interim, the EHRC advised organisations to take specialist legal advice on any matters related to the issue. 

Governance impact

There are several important governance considerations charities should consider, including:

• Single-sex services/purposes (s.193 Equality Act 2010): If your charity restricts benefits or participation to one sex, that restriction must still be a proportionate means of achieving a legitimate aim (or to prevent/compensate for disadvantage). After FWS, Equality Act references to sex are to biological women/men, so charities should review whether existing charitable purposes and/or activities reflect that legal position.
• Membership, participation and fundraising events: If you have historically described activities as ‘women‑only’ (e.g., support groups or fundraising events) under the Equality Act, sense‑check whether the legal basis for this remains accurate. If trustees wish to be trans‑inclusive as a matter of ethos or mission, consider well‑designed parallel or alternative routes, without mislabelling them as Equality Act single‑sex provision
• Board composition, quotas and positive action: Where your governing documents or policies reserve seats for women, or if you use positive‑action measures under the Equality Act, the legal test now operates by reference to biological sex. Review election rules, reserved places and positive‑action policies to ensure they remain lawful and still meet your aims. 

Employment impact

Many charities also act as employers and hence they will need to navigate the implications of the FWS case with their ‘employer hat on’.

The statutory code of practice from the EHRC referred to in the Commission’s open letter relates to service, public functions and associations. It does not expressly address the issues faced by employers; the provision of bathrooms and changing areas for staff has taken up recent press and tribunal time; similarly, service users' requests for gendered carers can be problematic for charities involved in health and social care. 

We understand that the EHRC intends to update its Employment Code of Practice once the code relating to services, public functions and associations has been laid before Parliament. We would hope that this updated code will provide some clarity, especially given that the ACAS guide on gender reassignment discrimination and the Government Equalities Office guidance have been withdrawn. 

It's an understatement to note that these cases are complex, contentious and potentially costly.  The tribunals are working out the implications of the FWS decision for employers and we have several first instance decisions in the employment tribunal already published. We previous addressed two cases on the use of toilet facilities for transgender employees and the protection afforded to non-binary individuals.  More recently, the judgment in the case of the nurses employed by Darlington NHS Foundation Trust was published. The tribunal chair found that the nurses had been subject to harassment when a trans woman was permitted to change in the same changing rooms as the biological women and no alternative provision was made (read more in our blog). These cases are not binding on other tribunals, but they give an indication of the potential direction of travel by the courts. 

Recent update from the Charity Commission

On 21 January 2026, the Charity Commission responded publicly to an open letter calling for clarity and guidance for charities. Many in the sector (ourselves included) had been waiting with bated breath, hoping this might finally be the moment when everything clicked into place. Sadly, the collective breath‑holding continues.

In its response, the Commission confirmed it cannot pre‑empt the EHRC’s statutory Code but will instead move to update its own charity‑specific guidance once the EHRC Code is finalised. In the interim, its regulatory approach is to accept that it may be reasonable for trustees either (a) to await the EHRC Code, or (b) to take tailored legal advice and make proportionate changes now. 

This provides some reassurance that the Commission is not necessarily expecting charities to make immediate policy changes whilst comprehensive guidance from the EHRC (and the Commission) is being finalised. While this response was encouraging in tone, it didn’t quite deliver the practical clarity that charities were hoping for. 

If you are concerned about your policies or practices, we would recommend the following.

• Map your touchpoints: Identify where ‘women‑only/men‑only’ appears (services, membership, events, elections). Prioritise high‑risk areas (refuges, sensitive services, safeguarding‑intensive settings). If you rely on Equality Act exceptions or positive action, stress‑test whether your messaging on this remains appropriate, and if the positive action remains proportionate.
• Plan alternative, inclusive routes: If you wish to remain trans‑inclusive as ethos/mission, consider parallel provision or carefully managed access routes, without mis‑labelling under the Equality Act.
• Make no knee-jerk reactions: The temptation currently is to respond quickly to avoid issues escalating and reduce the threat of any reputational damage. Whilst we strongly recommend addressing the issue and not leaving it for over 12 months as they did in the Darlington case, investigations, conversations, learning about the situation and seeking specific legal advice are a critical part of any response.
• Proceed with caution: If there is a decision to be made or a new policy introduced, do so carefully and consider the ramifications.  Will the implementation of the new policy be reasonably practicable? Have you consulted with staff and/or employee representatives? Is it reasonable to wait for the ECHR guidance before proceeding?
• Strengthen records and comms: If you decide not to act, record your reasoning, set a review timeline, brief frontline teams, and prepare a plain‑English holding statement explaining why you’re pausing or adjusting pending EHRC guidance.
• Take your staff and stakeholders with you:  It’s important that staff and stakeholders understand changes that are being made and why, but avoid phrases such as ‘educating staff in inclusivity’. This was cited in the Darlington nurses’ case and caused much damage in relationships. Just because staff are struggling to accept a new policy does not mean they need to be ‘educated’. They may have valid concerns which should be heard and not assume that they are standing in the way of your intended culture of inclusivity. 
• Seek specific advice: We have already seen with the tribunal cases noted above that the particulars of a situation are key when it comes to a tribunal decision. In the absence of unified guidance or an understanding of the ongoing ramifications of the FWS case, details are going to be crucial. Taking specific advice rather than applying broad lessons is vital if you are going to lower the risk of expensive litigation and move towards an inclusive environment where staff understand the needs and rights of their colleagues. 

Key point: The decision clarified the meaning of sex, but it did not remove protections for people with the protected characteristic of gender reassignment. The Scottish Government’s statement and practitioner commentary both stress that the ruling should not be read as a ‘triumph of one group over another’; careful, respectful application remains essential.

What we expect next

The EHRC’s updated Code was submitted to the Government back in early September 2025, but it’s still waiting in the ministerial in‑tray (we note the EHRC gave the Minister a polite nudge on 15 October 2025). Once approved, it must then be laid before Parliament for 40 sitting days… so not quite a sprint finish. After that, the Charity Commission will publish charity‑specific guidance.

That said, charities don’t need to sit on their hands while we wait for the dust to settle. A sensible next step is to sketch out an implementation plan covering governance and HR, so you’re ready to switch into action the moment the updated codes finally land. This could include lining up policy refreshes (constitutions, services, membership and elections, ED&I/harassment, facilities use) and preparing clear communication packs for staff, volunteers and beneficiaries.

Final thoughts 

The matter is both nuanced and polarising, and it is increasingly evident why regulators and government departments are struggling to provide guidance that is workable for organisations on the ground. However, that uncertainty inevitably cascades down to charities, leaving frontline staff, volunteers, service users and trustees navigating difficult questions without clear parameters. 

In the absence of authoritative guidance from either the EHRC or the Charity Commission, trustees must make governance decisions that carry real legal, operational and reputational consequences; something that can feel like being told to ‘mind the gap’ when nobody will say where the platform is. And (if you’ll allow us to stick with the train theme…) trustees could be forgiven for feeling like they’re being asked to keep the train on the tracks while the signal box is still wiring the lights. If the EHRC and Charity Commission are still finalising the route map, it’s hardly surprising that the carriage feels a little wobbly.

A note of caution

As ever with charity governance, the reality is nuanced. The issues discussed in this article will play out differently depending on a charity’s specific facts, activities, beneficiaries, constitutional documents and regulatory context. This is intended as a general overview to help trustees understand the landscape, not a substitute for tailored legal advice.

Before making any decisions on these matters, trustees should seek comprehensive, case‑specific legal advice to ensure they are acting lawfully, proportionately and in the best interests of their organisation. Please get in touch for further guidance and support.