Equality Act 2010: Code of Practice
Debate between Seema Malhotra and Caroline Nokes(1 week, 3 days ago)
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The Minister for Equalities (Seema Malhotra)
With permission, I would like to make a statement on the draft Equality Act 2010 code of practice for services, public functions and associations.
The Equality and Human Rights Commission is the independent equality regulator, and it ensures compliance with the Equality Act 2010. Its code of practice covers all nine protected characteristics and the steps service providers should take to comply with the law. On receipt of the draft code from the EHRC in September, we consulted the devolved Governments in Wales and Scotland, per the process set out in the Equality Act 2006. The EHRC sent the Government an updated draft code last month, following engagement and further legal analysis, ensuring it is robust and accessible with clear explanations. The Minister for Women and Equalities updated Parliament in April, with the Government committed to laying the code in May following restrictions during the pre-election period. My right hon. Friend honoured that commitment on 21 May.
The EHRC has worked hard to produce a code that works for everyone. Following the laying of the draft code, there is now a 40-day period, not including the recess, that allows for parliamentary scrutiny, as set out in the Equality Act 2006. If neither House disapproves the draft in this period, the Minister can then revoke the 2011 code by regulations and then bring the new code into force by a commencement order.
Today, I want to update the House on the contents of the code, in particular what has changed between this draft code and the 2011 version. The updates are primarily where there have been legislative changes, developments in case law, a change or clarification of terminology, or new guidance issued since the original code was published in 2011. The most substantial changes relate to the ruling by the Supreme Court in the case of For Women Scotland Ltd v. The Scottish Ministers handed down on 16 April 2025. The judgment set out that sex means biological sex for the purposes of the Equality Act 2010, and that trans people are still protected by the Act. In its judgment, the Supreme Court also warned against reading the 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. Changes primarily relate to the provision of sex-based services, when it is lawful to limit access to services and associations based on sex and gender reassignment, implications for competitive sport, and asking about someone’s sex.
For duty bearers, the draft code provides further clarity on how service providers can follow the Supreme Court ruling in practice. Although it cannot cover every single scenario, the EHRC has provided key explanations and worked examples, meaning that there is something that every organisation can take from it and apply in their own context with common sense. If a service provider still is not sure, perhaps because of a quite specific circumstance, they should take legal advice.
For clarity, the draft code indicates that a single-sex service should be provided on the basis of biological sex, so a women-only service should be for biological women only.
Service providers should find that the code provides certainty and clarity on who can access single-sex services and how they can best ensure women’s privacy, dignity and safety.
The code encourages services to communicate their policy on single-sex provision clearly, empowering women to make informed choices when accessing services. This could be especially useful for those women who, for feelings of safety or cultural or religious reasons, are unable to share some spaces with men. The draft code is also clear that trans people should not be left without services to use. Providers could provide mixed-sex facilities or specific support for trans people. We believe service providers will be able to find the right balance for everyone.
Members have raised accessing toilet facilities. The code indicates that toilets designated as male or female should be for those of that biological sex. Trans people can use accessible toilets, individual lockable toilets or unisex toilets. The draft code reflects that there must be toilet services for all, and many businesses and service providers will already meet those requirements. For example, a small café might have only one or two individual locked toilets for use by all customers. The draft code provides practical guidance on different ways to comply with the law. Some organisations will not need to make any changes at all and for those that do, in the majority of cases, we are talking about changing signs on existing facilities or updating them so that they are fully enclosed.
What the code does not provide is the right for members of the public to challenge one another on their sex and access to those spaces. People have been using single-sex spaces with a sensible and respectful attitude to other users for years and will continue to do so. Most people have the common sense to step in when necessary, when a person of the opposite biological sex enters a single-sex facility in error, for example, or to know when to alert a member of staff. The draft code provides clarity to service providers to ensure that people have access to services that are private and safe.
I am aware that some have also raised concerns over the code’s content regarding special category personal data. The code states that where an individual is asked to confirm their sex, that should be done sensitively and with respect for their privacy. The draft code explains that information about sex is likely to constitute special category personal data, where, for example, asking about sex may lead to the disclosure of someone’s medical history or the fact that they have a gender recognition certificate. The code advises providers to handle such conversations appropriately. We will work with the EHRC to ensure that service providers understand what is required of them when handling data.
There is also an interest in associations. If an association is for “women only”, the draft code indicates that that should be on the basis of biological sex. The draft code’s section on associations based on more than one protected characteristic means that an association that wants to be trans-inclusive can do so by basing its membership on both sex and gender reassignment.
There are also changes to disability, maternity and pregnancy protections. The draft code highlights protections for disabled people in the Equality Act that expand on what was included in the previous code, such as non-discrimination in relation to access to services. This will be the first time they are recognised and explained in the code. This is an important step for disabled people’s rights.
For pregnant and breastfeeding women, the updated code highlights that harassment relating to breastfeeding may also constitute unlawful harassment on the grounds of sex, confirming that women are protected. The code also highlights that while the protected characteristic of pregnancy and maternity is not covered directly under the harassment protections in the Act, it is indirectly covered, as such harassment amounts to harassment related to sex.
We note the wider interest in the implementation of the For Women Scotland judgment and the draft code across Government. We are committed to doing this and are working across Departments, considering the implications of the code on policies and activities.
The Equality Act is one of the most significant achievements in modern British history which was enacted by the previous Labour Government. It is the quiet guardian in millions of people’s daily lives. This Government will uphold and protect it, not weaken it. We are grateful to the EHRC for its work on the draft code to ensure that duty bearers and service users have up-to-date guidance on the Equality Act. We will always uphold our British values of treating everyone with dignity and respect. I commend this statement to the House.
Seema Malhotra
I thank the hon. Lady for her response and questions. Let me say up front that we take this issue incredibly seriously. Services and associations need to operate in compliance with the law, and we want to support them. The issue is not a political football for us; nor should it be for any Member of this House. We are focused on the practical—treating everyone with compassion, dignity and respect—and we should never fan the flames or seek to grab headlines. We will support services to operate and provide single-sex spaces where needed and ensure that trans people have access to all the services to support their needs, too.
The hon. Lady accused the Government of delay but, as a shadow Equalities Minister, she will know that there is a process that has to be followed. In line with that process, as outlined in the Equality Act 2006, we consulted the devolved Administrations; we worked across Government on the myriad services that we provide, or support others to provide; and we conducted an analysis of the code and its impact. The EHRC made some changes following its engagement and consultation. We were told by the Cabinet Office’s permanent secretary that we could not lay the code during the pre-election period. We have now laid the draft.
The hon. Lady said that in laying the draft in May, before the parliamentary recess, as my right hon. Friend committed to do, we were somehow seeking to delay scrutiny. It may help to clarify that upon laying the draft there is a 40-day period that allows for parliamentary scrutiny, and that excludes the recess. There is sufficient time for adequate scrutiny, and I am sure that the House will give the matter its attention.
In relation to guidance for the NHS, it is helpful for the House to know that NHS England is currently reviewing its guidance and will ensure that it reflects the Supreme Court ruling in the For Women Scotland v. The Scottish Ministers case. It will also take account of the Equality and Human Rights Commission’s statutory code of practice.
It is important to note that although the code does not directly apply to employers, its explanation of the Equality Act 2010—particularly around unlawful discrimination and harassment—will be relevant to and helpful for employers in considering how best to comply with their obligations under that legislation. The EHRC has a separate employment code of practice, which it also intends to update in the future.
Madam Deputy Speaker
I call the Chair of the Women and Equalities Committee.
Sarah Owen (Luton North) (Lab)
I really wish that there was a better beginning to Pride Month than what we are discussing. Although the code is marginally different from its draft, it is still a trans-exclusionary one at its core, and unfortunately not inclusive. Moves like this from the EHRC and the Government have seen the UK slip from third in 2019 to 22nd in the European rankings for LGBT+ people to live and feel safe. Does the Minister share my concern that the new code of practice will only further the UK’s now hostile environment for trans people and not calm it? How will she act to stop the erosion of LGBT+ rights in this country?
Seema Malhotra
I thank my hon. Friend for her question. She will know that making sure that we can support women and their rights, alongside treating trans people with dignity, must be the priority for all of us. That is what we are aiming to achieve. That is why it is important that we have the draft code now available for scrutiny. We will continue to ensure that we provide single-sex spaces where needed, and also ensure that trans people have access to services to support their needs, in an environment of dignity and respect for all.
Marie Goldman (Chelmsford) (LD)
I thank the Minister for advance sight of her statement. After the Supreme Court’s ruling last year, the Government’s job was to give people, businesses and organisations clear, workable guidance. The code is instead unworkable, exclusionary and expensive for businesses. As the Minister knows, the Government must ensure that they meet the legal obligations placed on them by the public sector equality duty. That requires the Minister to have due regard to the need to eliminate unlawful discrimination, harassment, victimisation and any other conduct, to advance equality of opportunity between people who share a protected characteristic and people who do not, and to foster good relations between people who share a protected characteristic and people who do not.
Yet the Government’s own equality impact assessment identifies disproportionate harm to those with protected characteristics, and a failure to set out how that harm will be addressed. Can the Minister really say, hand on heart, that she believes the guidance does that? The impact assessment notes how the guidance will likely impact women who are not trans, yet do not meet cultural and social expectations around what a woman should look like. There have already been stories of women with mastectomies being challenged when accessing women-only spaces because they do not look like women. Has the Minister truly considered that?
For trans, non-binary and intersex people, the code operates from a position of exclusion. It risks driving those small minorities away from public life, as leading mental health charities have since warned. The guidance conflicts with our core British values of tolerance, decency, respect for individual liberty and the rule of law. That is why I urge the Minister to withdraw it and to accept that this issue needs to be resolved by Parliament as law makers. To achieve that, I beg the Minister to adopt the Liberal Democrat proposal to appoint a joint committee of cross-party MPs and peers, to conduct post-legislative scrutiny of the Gender Recognition Act 2004 and the Equality Act 2010, taking evidence from all communities who have been impacted, in order to propose amendments or new legislation that it sees as necessary to ensure that existing rights are protected. If we work together we can fix this; sowing division will not.
TOEIC: Overseas Students
Debate between Seema Malhotra and Caroline Nokes(6 years, 10 months ago)
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Urgent Questions are proposed each morning by backbench MPs, and up to two may be selected each day by the Speaker. Chosen Urgent Questions are announced 30 minutes before Parliament sits each day.
Each Urgent Question requires a Government Minister to give a response on the debate topic.
This information is provided by Parallel Parliament and does not comprise part of the offical record
Caroline Nokes
It is worth reflecting on the fact that many of those caught up in this attended a very small selection of colleges, which have subsequently been shut down. There were very close links between colleges being found to be operating outside their licences and these accusations of cheating. However, I must reflect on the fact that there were over 30,000 cases where there was absolute evidence that people had cheated. There were also 22,000 cases where there were questionable results. All those people were given the opportunity to resit a test. However, it is important to reflect on what my right hon. Friend the Home Secretary said in his statement yesterday: we are looking at the other issues and particularly at whether we can give people who maintain their innocence another opportunity to challenge the finding of deception. However, the independent expert found that the likelihood of false matches was very small indeed and likely to be less than 1%.
Seema Malhotra (Feltham and Heston) (Lab/Co-op)
I welcome the Minister’s reference to understandable concerns, and I get the sense that she will want to see this issue concluded as quickly as possible. I have been contacted by at least six constituents who are unable to work and support their families as a result of the alleged cheating in TOEIC. They have lost their visas and been threatened with deportation, and their children’s education has been put at risk. They have not had the chance to prove their innocence. Their lives are on hold, and their families are under great strain. They are living in limbo. How reassured should my constituents feel by the Minister’s statement that they will be able very soon to get the chance to clear their name and, indeed, to get justice for what they have been through?
Caroline Nokes
As I have said, those with questionable tests were given the chance to resit the test at the time. We are clearly stating that the route via an article 8 claim to a family life is one that we wish to enable people to pursue, and they should make another claim. Obviously, I cannot stand here and comment on individual cases, but we are giving people the opportunity to make an article 8 claim, and I hope that that provides a mechanism going forward.