The Equality Act 2010 (Code of Practice on Services, Public Functions and Associations) (Commencement) Order 2026

The Equality Act 2010 (Code of Practice on Services, Public Functions and Associations) (Commencement) Order 2026 brings into force a revised Code of Practice, effective from 5 August 2026. This new Code, issued by the Equality and Human Rights Commission (EHRC), provides updated guidance for service providers, public bodies, and associations on complying with their duties under Parts 3 and 7 of the Equality Act 2010. A key development is the incorporation of the UK Supreme Court’s interpretation of “sex” as biological sex, with significant implications for the provision of single-sex and separate-sex services. The Order marks a crucial step in clarifying legal obligations and promoting equality across various sectors, replacing the previous 2011 Code.

The landscape of equality law in Great Britain is set for a significant update with the commencement of the Equality Act 2010 (Code of Practice on Services, Public Functions and Associations) (Commencement) Order 2026. This statutory instrument, effective from 5 August 2026, brings into force the Equality and Human Rights Commission’s (EHRC) new Code of Practice on Services, Public Functions and Associations (the “2026 Code of Practice”). This development is of paramount importance for legal practitioners, as it provides authoritative guidance on the interpretation and application of key provisions within the Equality Act 2010, particularly those concerning the provision of services, the exercise of public functions, and the operation of associations.

The Equality Act 2010 (the “Act”) serves as the cornerstone of anti-discrimination law in Great Britain, consolidating and simplifying a complex array of previous legislation. It prohibits discrimination, harassment, and victimisation across nine “protected characteristics”: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. The Act is structured into various parts, with Part 3 specifically addressing discrimination in the provision of services and the exercise of public functions, and Part 7 dealing with associations, such as private clubs.

Under the Equality Act 2006, the EHRC (formerly the Commission for Equality and Human Rights) is empowered to issue Codes of Practice to provide practical guidance on how to comply with equality legislation and promote equality of opportunity. While these Codes are not the law themselves, courts and tribunals are statutorily required to take them into account where relevant in legal proceedings. This gives them significant persuasive authority, making adherence to their guidance crucial for organisations seeking to avoid liability for discrimination. The previous Code of Practice on Services, Public Functions and Associations, enacted in 2011, will be revoked concurrently with the new Code's commencement to ensure clarity and prevent conflicting guidance.

The 2026 Code of Practice represents a significant update, reflecting legislative changes, developments in case law, and evolving societal understanding since the 2011 version. A central driver for this revision is the UK Supreme Court’s 2025 decision in *For Women Scotland Ltd v The Scottish Ministers*, which clarified that the protected characteristic of “sex” under the Equality Act 2010 refers to biological sex. The new Code provides detailed guidance on the lawful provision of single-sex and separate-sex services, explicitly stating that these should be based on biological sex. It further clarifies that if a service provider permits a trans person to use a service designated for the opposite biological sex, that service may no longer be considered single-sex and could lead to unlawful discrimination claims.

Service providers and those exercising public functions are now required to undertake a proportionality assessment when considering the exclusion of trans individuals from single-sex spaces. This involves balancing legitimate aims, such as privacy or safety, against the impact on affected groups. However, the Code also stresses that trans people must not be left without access to essential services, such as toilets, and encourages the provision of mixed-sex options alongside single-sex facilities where appropriate. Beyond the highly publicised aspects related to sex and gender reassignment, the 2026 Code also introduces updated guidance on other protected characteristics, including new content on issues such as breastfeeding and menopause, and reflects the legalisation of same-sex marriage.

The Code's scope extends to Part 3 of the Act, covering services (including goods and facilities, whether paid or not) and public functions (such as law enforcement), and Part 7, which applies to associations with 25 or more members that operate a selection process. It is important to note that the Code does not apply to employment duties, which are covered by a separate Code of Practice, nor does it generally apply to education provisions under Part 6 of the Act, unless a facility (e.g., a university library) is also offered as a public service. Furthermore, certain limitations on protected characteristics within Part 3 remain, such as the non-application of age discrimination provisions to under-18s and the exclusion of marriage and civil partnership from this part.

The commencement of the 2026 Code of Practice on Services, Public Functions and Associations necessitates a thorough review of existing policies and practices for all entities providing services, exercising public functions, or operating as associations in Great Britain. Practitioners must advise clients to familiarise themselves with the updated guidance, particularly the detailed provisions concerning single-sex spaces and the interpretation of 'sex' as biological sex, to ensure compliance and mitigate legal risks. The emphasis on proportionality and the need to avoid leaving any individual without access to essential services will require careful consideration and potentially bespoke policy development.

Moving forward, legal professionals should monitor early enforcement actions by the EHRC and judicial interpretations of the new Code. While the Code provides invaluable guidance, it is not a substitute for the Act itself, and its provisions must always be read in conjunction with the underlying statute and relevant case law. Proactive engagement with the 2026 Code is essential for ensuring that clients not only meet their legal obligations but also foster inclusive environments in line with the spirit of the Equality Act 2010.