Background to the Supreme Court Ruling and EHRC Code

The Equality Act 2010 sets out protections against discrimination on the basis of nine protected characteristics, including sex and gender reassignment. In April 2025 the UK Supreme Court ruled in the case of For Women Scotland Ltd v The Scottish Ministers that the definition of sex in the Act refers to biological sex as recorded at birth. A Gender Recognition Certificate does not alter this for the purposes of the Act. This clarification prompted the Equality and Human Rights Commission to update its statutory Code of Practice for services, public functions and associations.

On 21 May 2026 the updated draft Code received ministerial approval and was laid before Parliament. It provides detailed practical guidance on how service providers, including universities, should apply the law to single-sex and separate-sex services. The Code emphasises that the starting point for most services remains mixed provision. Where single-sex facilities are offered, providers must justify the approach, demonstrate proportionality and consider less intrusive alternatives.

Key Provisions of the New EHRC Guidance

The Code confirms that single-sex spaces such as toilets, changing rooms and certain sports or accommodation facilities must generally be accessed on the basis of biological sex. Transgender individuals are protected under the gender reassignment characteristic and should be offered suitable alternatives, typically gender-neutral or mixed facilities. Admitting a person of the opposite biological sex to a single-sex service means the provider can no longer rely on the statutory exception, creating potential legal risk of sex discrimination claims from those excluded.

Providers are encouraged to develop clear written policies and to assess requests on a case-by-case basis rather than applying blanket rules. Cost alone does not justify a discriminatory approach. The guidance stresses that incidental challenges in ordinary toilet settings are unlikely to be appropriate or practical.

Implications for UK University Facilities

Universities act as service providers under the Equality Act when offering facilities to students, staff and visitors. The new guidance requires institutions to review policies governing toilets, changing rooms, sports facilities, student accommodation and any other single-sex spaces. Many universities have already begun internal audits following the Supreme Court ruling and the subsequent interim EHRC update.

Institutions must balance competing rights: the need to provide safe and private single-sex spaces for women and men alongside the duty to avoid unlawful discrimination against transgender students and staff. Experts have cautioned against rushed policy changes, noting that decisions must be evidence-based and proportionate.

Stakeholder Perspectives from the Higher Education Sector

University leaders and equality officers have welcomed the clarity provided by the Code while highlighting practical challenges. Some institutions report that existing gender-neutral facilities already meet the needs of many transgender students, reducing the need for major alterations. Others are considering phased upgrades to ensure adequate provision of both single-sex and alternative spaces.

Student unions and equality networks have expressed concern about potential impacts on transgender and non-binary students' sense of belonging and mental wellbeing. At the same time, women's groups and some staff networks have highlighted the importance of maintaining single-sex spaces to protect privacy and safety, particularly in changing rooms and sports settings.

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Practical Steps for Universities

Institutions are advised to conduct comprehensive reviews of all relevant facilities and policies. This includes mapping current provision, consulting with affected groups, assessing legal risks and documenting decision-making processes. Training for estates, accommodation and student services teams is likely to form part of implementation plans.

Where single-sex facilities are retained, clear signage and communication will be essential. Providers should also ensure that gender-neutral options are genuinely accessible and do not create indirect discrimination. Regular monitoring and review will help institutions demonstrate compliance if challenged.

Legal and Regulatory Context

The Code of Practice is a statutory document approved by the Secretary of State and laid before Parliament. Once the 40-day scrutiny period concludes without objection, it will replace the 2011 version. Although not legally binding in itself, courts and tribunals must take the Code into account when interpreting the Equality Act.

The Equality and Human Rights Commission retains enforcement powers and may investigate complaints or issue compliance notices. Universities that fail to update policies in line with the clarified law could face claims of direct or indirect sex discrimination or harassment.

Impacts on Students, Staff and Campus Life

The guidance is expected to influence day-to-day experiences across UK campuses. Transgender students may be directed to gender-neutral facilities, which some institutions are expanding. Women's and men's groups may see reinforced access to single-sex spaces in areas such as sports changing rooms and certain accommodation blocks.

Staff facilities are also covered, although separate employer guidance is anticipated later. Early indications suggest that many universities will adopt a measured approach, prioritising consultation and phased implementation over immediate widespread changes.

Future Outlook and Sector Responses

Over the coming months universities will publish updated policies and guidance for their communities. Sector bodies such as Universities UK and the Equality Challenge Unit are likely to issue supporting resources. Ongoing dialogue between institutions, student representatives and equality organisations will be crucial to achieving workable solutions.

The Code does not prevent universities from offering inclusive environments; it clarifies the legal framework within which inclusion must operate. Institutions that invest in thoughtful policy development and clear communication are best placed to minimise disruption while meeting their legal obligations.

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Resources for Further Information

University administrators and equality practitioners can consult the full draft Code of Practice on the gov.uk website. The Equality and Human Rights Commission site provides additional context on the Supreme Court ruling and interim updates. Specialist higher education coverage appears in Times Higher Education and other sector publications.