Equality Act 2010: Code of Practice

Lord Scriven Excerpts

Wednesday 3rd June 2026 Lords Chamber

[Baroness Stedman-Scott (Con)]

My Lords, I welcome the opportunity to respond to the Statement on the draft Equality Act 2010 code of practice. The publication of the draft code is welcome, and I was pleased to see greater protections for breast-feeding women, and greater clarity for people with disabilities. Those are important improvements.

The Conservative Party has always been clear on this issue: vulnerable women and girls must be protected. We welcome the judgment of the Supreme Court, and we will always stand up for single-sex spaces to be protected in line with the law. That is the right approach; no matter what pressure they may be under from their friends in the unions and the Liberal Democrats, the Government must do the right thing and protect women and girls. However, public bodies, employers, schools, service providers and women across the country have been waiting many months for clarity following the Supreme Court’s judgment, and I cannot understand why they have had to wait so long.

Before I speak to the detail of the code, can the Minister please explain why the Government took so long to bring it forward? We understand that the EHRC first submitted its draft to Ministers last September and, during that period, organisations responsible for implementing the law were left without the clarity they needed, despite the Supreme Court having already provided legal certainty on the meaning of “sex” within the Equality Act. In particular, we know that many NHS settings have failed to comply with the Supreme Court judgment while waiting for the updated code of practice. Does the Minister recognise that this unacceptable delay has caused material harm to women, who should have had their own spaces protected much sooner? It is not just the NHS. Many other organisations have spent the past year attempting to navigate their responsibilities without the updated code of practice. Does the Minister accept that this delay has contributed to confusion for service providers and uncertainty for those seeking to access services?

Ministers have said that the delay was a result of changes to the code of practice being required. As noble Lords will know, Section 14(7) of the Equality Act 2006 allows for the Secretary of State to approve the EHRC draft code of practice or to reject it with written reasons. It does not provide for the Secretary of State to withhold approval pending changes. Can the Minister therefore explain what happened in this case? What legal basis exists for the Secretary of State to put approval of the code of practice on hold while the EHRC makes changes to the code of practice? Does the Minister agree that what happened in this case runs contrary to the process conceived by Parliament when the Act was put into law?

However, whatever the legal basis of that decision, transparency would certainly help to build trust in the way Ministers have approached this issue. Can the Minister set out what changes, if any, the Government requested to the EHRC’s original draft before laying it before Parliament? Will the Government publish details of any substantive amendments that were made and the reason for them? Can the Minister say whether any changes to the original draft demanded by the Secretary of State were not reflected in the final draft laid before the House before recess?

The Supreme Court has provided legal clarity, and organisations now require operational clarity. Can the Minister assure the House that government departments, bodies and public authorities will move swiftly to review and update their own guidance, policies and procedures so that they are fully consistent with both the judgment and the code? What process will Ministers follow to ensure compliance, and will the Minister commit to updating the House on the progress that public bodies, in particular the NHS, are making towards full compliance with the code of practice? While Parliament has a duty to uphold the rights of women and girls and the lawful provision of single-sex spaces, it is equally important that everybody is treated with dignity and respect. Can the Minister outline what practical support will be provided to schools, hospitals, local authorities, charities and businesses to assist them in implementing the code consistently and lawfully?

Finally, the draft code of practice contains an inaccuracy. It states:

“Information about sex is likely to constitute special category data for the purposes of the Data Protection Act 2018 (DPA) and UK General Data Protection Regulations (GDPR)”.


Special category personal data is described under Article 9 of the UK GDPR; the category of sex is not included as such data. Will the Minister look into this and ensure that a correction is made to the code of practice? I look forward to the Minister’s response.

[Lord Scriven (LD)]

My Lords, I thank the Minister for this Statement on a profoundly important yet sensitive matter. When we debate the updated code of practice, we must remember that at the heart of this issue are fellow citizens. If we listen closely, we find that people affected by the code are driven by exactly the same fundamental human needs: respect, dignity and the desire to live with peace of mind. We hear the deeply held convictions of some women who look to single-sex spaces for privacy, companionship and dignity. For them, preserving the integrity of these spaces is not an abstract legal concept but a practical requirement for their dignity. We also hear the equally profound anxieties of some transgender individuals who fear that the new guidance will effectively lock them out of public life, strip away their dignity and subject them to humiliation or hostility when simply trying to access basic services. Both views are valid, and we must not ignore either.

As a House and as parliamentarians, our duty is to look objectively at the governance, economics and practical workability of this draft code in the light of the laws of the land. Following the laying of the draft code, the final stage impact assessment reveals a striking economic reality: the central estimated annualised costs sit at £81.7 million, with an overwhelming 82% of this financial burden falling squarely on the private sector. Further, 60% of the entire 10-year cost profile is front- loaded in the first 24 months.

Yet the assessment admits an extraordinary level of uncertainty and contains no independent verification from the Regulatory Policy Committee. Crucially, the document explicitly acknowledges that, due to severe data limitations, the Government have been entirely unable to assess the specific impact on small businesses and micro-businesses. The Government are, in effect, flying blind, passing a statutory framework that could heavily penalise local businesses without any hard evidence or baseline data on how smaller enterprises are supposed to absorb these costs. We must look also at how this code will work on a Wednesday afternoon for, say, a local charity or small independent business. Right now, it will create significant contradictions that would leave them exposed to litigation. To that end, I wish to press the Minister on four critical issues regarding implementation.

First, what practical or financial support will be provided to small businesses that simply lack the physical space or capital to build the self-contained gender-neutral facilities recommended in the impact assessment?

Secondly, what operational guidance do the Government intend to issue to public-facing service providers regarding the precise mechanism by which front-line staff can lawfully and proportionately verify an individual’s sex recorded at birth without breaching Article 8 of the European Convention on Human Rights, GDPR rules on special category data or Section 22 of the Gender Recognition Act 2004?

Thirdly, what assessment have the Government made of the potential legal conflict for service providers between the provision in the draft code that a single- sex service will lose its statutory status if it includes an individual based on their gender reassignment characteristic and the ongoing statutory requirement under the Equality Act 2010 to demonstrate that the exclusion of that individual constitutes a proportionate means of achieving a legitimate aim?

Fourthly, the code will pass via the negative procedure unless Parliament acts within 40 days. Given the concerns about the uncertainty and costs it will create, will the Government consider supporting a Joint Committee of both Houses to give these questions raised by the ruling and subsequent code the parliamentary scrutiny they have not yet fully received?

If we want a society that is fair, we cannot pass down ambiguous guidance that forces business owners, charities and low-wage front-line staff to act as constitutional lawyers, risking complicated litigation. They need clarity and a code of practice that is operationally and economically viable. Above all, we need an approach that treats all individuals, and those trying to run services for them, with the certainty and dignity they deserve. I look forward to the Minister’s response.

[The Deputy Leader of the House of Lords (Lord Collins of Highbury) (Lab)]

I thank both the noble Lord and the noble Baroness for their questions and contributions.

I start by picking up the point made by the noble Lord, Lord Scriven, and addressing the noble Baroness, Lady Stedman-Scott, about the general principle. We forget what the Supreme Court itself said in its judgment, which is, of course, repeated in the Statement. It is worth repeating. The court

“warned against reading this judgment ‘as a triumph of one or more groups in our society at the expense of another’. That is why this Government will always treat these issues sensitively and will refuse to use any group as a political football. The Government have been clear that we will protect single-sex spaces based on biological sex where they are needed, such as women’s refuges. We have also been clear that everyone, including trans people, should have the right to access the services they need in a way that is respectful, protects dignity and privacy, and ensures adequate provision”.

That is where everybody in this House should be focused.

As the noble Baroness knows, having participated in a number of Oral Questions about the timing of the code, we have repeatedly said that it is important the code gets this right or it will lead to further legal challenges. I have seen the letter from the shadow Minister for Equalities on the issues of delay and changes. It is for the Equality and Human Rights Commission to answer that specific set of questions. Our focus, as I have repeatedly said, has been to make sure that organisations have the guidance they need and that it is clear and practical. We have made sure of this by doing a thorough job of ensuring that the duty bearers have the guidance they needed to comply with the Equality Act. The EHRC has been clear that it made a decision to amend the draft code following feedback, consultation, responses and legal advice. That is where we are.

One of the key elements is to ensure proportionality, and the noble Lord, Lord Scriven, has raised a valuable point, particularly about costs. The commission has been clear that service providers might comply with the law in different ways due to different factors, such as physical building constraints. There is no blanket requirement for a particular approach and duty bearers should take a proportionate approach. For example, a small café might have only one individual lockable toilet for all customers, and there are lots of examples like that.

The estimated costs that the EHRC has provided have been spread across different parts of the economy, not just one sector of business, over a 10-year period. Many of those costs will be one-off, rather than ongoing. This is about complying with the law and the draft code provides guidance to support organisations to do so.

On an issue that has been raised before, I have been clear, as has my noble friend Lady Smith, that the Supreme Court judgment was clear and must be complied with. All government departments must comply with it; we have been clear about that. The Cabinet Office has updated Civil Service model policy and departments will work to implement the policy changes as soon as possible. Compliance with the law is clear. We will continue to keep our guidance updated, to ensure that it takes account of the latest case law and any future updates by the EHRC to the code of practice on employment. The noble Baroness, Lady Stedman-Scott, is right that there are other changes in the code that have brought it up to date, particularly around breastfeeding mothers and people with disabilities. We should see it in that context, and no doubt there will be periods when we need to do that.

The noble Baroness raised the issue of the NHS. The NHS is for everyone. The Secretary of State for Health is clear that NHS services should protect single-sex spaces based on biological sex, while at the same time protecting the rights, dignity and safety of trans people. The Government have taken action by publishing the draft code, and NHS England will be publishing guidance to bring it into effect in due course.

I have said before that in the past, the debate on this issue has been incredibly toxic. I think that everyone in this House wants to ensure that we can move forward respectfully and compassionately and understand the needs of all our communities.

The noble Baroness, Lady Stedman-Scott, knows that I have been part of a situation where a Government decided that a category of people in our community was not safe to work with children. That was Section 28. We should not forget that and the consequences of that. I am absolutely determined that we should protect everyone’s interests, including those of women, women’s safe spaces and, of course, single-sex spaces, as committed by the Supreme Court, but we must not forget that trans people deserve respect too, and that is what we will continue to do.