Equality Act 2010: Supreme Court Judgment

Baroness Smith of Malvern Excerpts

Thursday 27th November 2025 Lords Chamber

[Lord Rooker]

To ask His Majesty’s Government which departments have been involved in considering the Equality and Human Rights Commission’s code of practice on implementing the Supreme Court judgment on the meaning of “sex” in the Equality Act 2010.

[The Minister of State, Office for Equality and Opportunity (Baroness Smith of Malvern) (Lab)]

My Lords, the Services, Public Functions and Associations: Code of Practice provides guidance on all protected characteristics, not solely sex and gender reassignment. As the sponsoring body, the Office for Equality and Opportunity is responsible for providing advice to Ministers on the code. Other government departments have been consulted as required on specific elements of the code.

[Lord Rooker (Lab)]

I thank the Minister for that Answer; it was a fairly simple Question. But does my noble friend understand that the delay and constant difficulty in giving straight answers to questions about the guidance gives the strong impression that the Government are being held to ransom by a tightly knit group of politically motivated Peers and MPs who do not accept the Supreme Court judgment, as stated by the rule of law? One is entitled to ask: where has the rule of law gone?

[Baroness Smith of Malvern (Lab)]

No, I do not recognise that because it is not true. Any suggestion that the Government are delaying the code is both totally inaccurate and unhelpful. This is a long and complex document, and we are carefully considering it. Frankly, it would be catastrophic for single-sex services, which have always been supported by this Government and this party, to implement guidance that was not legally sound, which would then place them in legal jeopardy again. That is why it is vital that we get this right. We have always been clear that the proper process needs to be followed, which includes understanding the potential impact on businesses, public functions and services. Understanding impacts is a routine and regular aspect of decision-making; it is not a delaying tactic.

[Baroness Goldie (Con)]

For the avoidance of doubt, will the Minister confirm that the law is as determined by the Supreme Court judgment? Any code of practice is guidance.

[Baroness Smith of Malvern (Lab)]

Yes, I am very happy to confirm that, as has been the Prime Minister. To be clear, the Supreme Court ruling in relation to the For Women Scotland case is clear; both inside and outside government, we expect it to be followed and, where necessary, people to seek specialist legal advice to enable them to do that.

[Baroness Burt of Solihull (LD)]

My Lords, on costs, what assessment has been made of the potential cost implications for employers and public bodies? How are the Government ensuring that the code does not inadvertently require expensive or disproportionate changes to facilities or service delivery?

[Baroness Smith of Malvern (Lab)]

I do not believe that it will, but understanding costs is of course a routine and regular aspect of decision-making, as I suggested. This is a long and legally complex document that will have an impact on service providers up and down the country. Rightfully, we are carefully considering it and have asked the EHRC not to carry out a full regulatory impact assessment but, rather, to help by providing information on costs to ensure that a full impact assessment is not required, so that Ministers can take a fully informed decision.

[Baroness Falkner of Margravine (CB)]

My Lords, I declare for the final time an interest as chair of the Equality and Human Rights Commission. I am sure that the House will be delighted to hear that this is my final intervention on this matter, but I want to explain for the information of the House the important point made by both the noble Lord, Lord Rooker, and the Minister. It is simply that the code was provided to government on 8 April, before the Supreme Court ruling. Since the Supreme Court ruling, only 10% of the code has changed. It is coming up to eight months since 90% of the code was reviewed by the Government, and they responded with suggestions to those different protected characteristics and aspects. It is only that 10% which has been with the Government since 4 September.

Finally, the Minister makes an important point about the costs of the regulatory impact. The bottom line is that since this is the law of the land, the impact of costs will be far higher if we litigate through the courts case by case, public body by public body, and duty bearer by duty bearer.

[Baroness Smith of Malvern (Lab)]

I wholly agree with the noble Baroness on her last point, which is precisely why it is important that we consider the code appropriately, as laid out in law in the Equality Act 2006. She is right that, as I outlined, the code covers more than the protected characteristics of sex and gender reassignment. But it was on 4 September that the updated code, post the For Women Scotland case, was submitted to the Government. For the reasons I have outlined, I do not think it unreasonable for the Government to take the time to consider this appropriately and to consider, as they are expected to do by the burdens process put in place by the previous Government, the potential impact of that on providers, and for us to work to do so in a way that will safeguard providers in protecting all the protected characteristics that the code—

[Lord Carlile of Berriew (CB)]

My Lords—

[Baroness Smith of Malvern (Lab)]

I have not finished yet. In concluding, I take the opportunity to thank the noble Baroness, Lady Falkner, for her work in leading the EHRC. I suspect that this will not be the last time she asks questions about this issue in this House, and nor should it be.

[Baroness Brown of Silvertown (Lab)]

My Lords—

--- Later in debate ---

[Baroness Brown of Silvertown (Lab)]

As the Whip for the Equality Act 2010, can my noble friend the Minister clarify the next steps in the statutory process and how the Government will ensure that, when the code returns to Parliament, it will be legally sound, proportionate and practical for those who will implement it?

[Baroness Smith of Malvern (Lab)]

I thank my noble friend not only for that question but for her history of work in the area she outlined. As I suggested earlier, there is no benefit to anybody, particularly those who most need the clarity that application of the code can bring—for example, to lawfully provide single-sex spaces for women—to sidetrack the correct and careful process the Government are following. The Government are following the process for laying the code in Parliament set out in the Equality Act 2006. The Minister for Women and Equalities is considering the EHRC’s updated draft code, as I have already outlined, and if the decision is taken to approve it, she will lay it before both Houses over a 40-day period, as per the process set out in Section 14 of the Equality Act 2006.

[Baroness Stedman-Scott (Con)]

My Lords, on 5 November the Minister was asked this by the noble Lord, Lord Pannick:

“Does the Minister agree that, today, it is the obligation of all persons, whether private or public, to comply with the judgment of the Supreme Court, whether they agree with it or not, and without waiting for guidance?”.—[Official Report, 5/11/25; col. 1926.]


She helpfully responded by saying, “I do agree”, so the Government have said they support the Supreme Court’s ruling, yet the EHRC’s updated guidance reflecting that ruling has sat with Ministers for almost three months. Can I push the Minister a little more to say when it will be published? Every week of delay fuels confusion over a legally settled issue and leaves service providers without the clarity they need. Will it be one month, three months, six months; or, even better, will it be very soon?

[Baroness Smith of Malvern (Lab)]

It will be at the point at which we have fulfilled the process that I have outlined to the House today. It will be at the point at which we can all be confident that what we provide in clarifying the application of the law will support providers in delivering for all those with protected characteristics, which is of course the role of the code. But the noble Baroness is right: I was clear in response to the noble Lord, Lord Pannick, about the clarity of the law and the requirement for all to be following it at this point. That is the position taken by the Prime Minister in the last week, and that is what everybody should be doing.

[Lord Carlile of Berriew (CB)]

Does the Minister agree that the current unclarity arises not from the judgment of the Supreme Court but from the rushed and muddled unclarity of the code provided by the EHRC? Does she agree that we must now make sure that we do not inadvertently create an undefined third category, who could be difficult for providers to deal with?

[Baroness Smith of Malvern (Lab)]

The theme of my responses today to the questions asked is precisely to try to follow the legal and correct process here, and to avoid legal uncertainty for providers in the application of the law and the use of the code in doing that. It serves nobody—it serves none of the people whom those in this House and more broadly understandably feel passionate about—if this Government are rushed by political considerations into publishing a code which will not do the job it needs to do for the most vulnerable people. That is at the heart of the process we are following, and at the heart of our commitment to serving those people.