Subsequent to our Open Letter to school governors across Brighton & Hove, issued on 18 May 2026, and the accompanying Governor Safeguarding Briefing, further authoritative guidance has now been published by the Equality and Human Rights Commission.
The release of the draft Equality Act 2010 Code of Practice for Services, Public Functions and Associations (2026) materially reinforces—and in key respects clarifies—the legal framework within which schools and governing bodies are required to operate.
For schools—and crucially, for school governors—the implications are immediate and practical. These are not abstract legal principles; they directly inform safeguarding obligations and governance accountability.
Legal Clarity: Sex Means Biological Sex
The draft Code states unequivocally:
“In the Equality Act 2010, references to a person’s sex are references to their biological sex.”¹
It further clarifies:
“A Gender Recognition Certificate does not change a person’s sex for the purposes of the Equality Act 2010.”²
For schools, this significantly clarifies a point that has, in practice, been treated as ambiguous. The Equality Act 2010 must now be understood, in operational terms, as grounded in biological sex when it comes to single-sex provision.
This has direct safeguarding implications. Schools are required to apply the law with clarity, not assumption.
Single-Sex Provision Is Lawful—and Protected
The draft Code confirms:
“A service provider may provide a separate or single-sex service where this is a proportionate means of achieving a legitimate aim.”³
It identifies legitimate aims including:
“privacy, decency, preventing trauma, ensuring health and safety, or enabling effective participation.”⁴
Safeguarding and Equality Act compliance are therefore mutually reinforcing, not in conflict.
For schools, this applies most clearly to:
- toilets
- changing rooms
- showers
- residential settings
- any context involving undressing or vulnerability
What “Single-Sex” Means in Law
The Code provides a decisive clarification:
“A women-only service is a service for biological women.”⁵
“If a service is provided for women and trans women, it is not a women-only service.”⁶
Likewise:
“A men-only service is a service for biological men.”⁷
A service that includes members of the opposite sex may not meet the legal definition of single-sex provision, and cannot simply be treated as such.
For schools, the implication is direct:
Policies permitting opposite-sex access to single-sex facilities require careful legal justification and cannot be assumed to comply.
Safeguarding Cannot Be Subordinated to Policy Preference
The Code emphasises that providers must consider:
“privacy, dignity, safety and fairness for service users.”⁸
It further notes:
“separate services may be necessary to avoid disadvantage or distress.”⁹
For schools, this reinforces a fundamental principle:
Safeguarding is not secondary—it is determinative.
Where policies undermine privacy, create distress, or expose pupils to risk, they are unlikely to withstand scrutiny under either safeguarding standards or equality law.
Gender Reassignment: Protected, But Not Overriding
The Code confirms:
“Gender reassignment is a protected characteristic.”¹⁰
But clarifies:
“A person with the protected characteristic of gender reassignment can lawfully be excluded from a single-sex service if the exclusion is a proportionate means of achieving a legitimate aim.”¹¹
The law therefore requires proportionate, reasoned decision-making, not automatic policy positions.
Decisions Must Be Defensible
The Code stresses:
“Service providers should consider carefully whether the provision of separate or single-sex services is justified and proportionate.”¹²
This establishes a clear expectation:
- decisions must be reasoned
- decisions must be recorded
- decisions must withstand scrutiny
Governing bodies must be able to demonstrate—not assume—that their policies are lawful, proportionate, and safeguarding-compliant.
What This Means for School Governors
Under Section 175 of the Education Act 2002, safeguarding is a non-delegable duty.
In light of the draft Code, governors must now ensure that:
Policies are legally grounded
- Do policies reflect the legal meaning of sex?
- Are single-sex provisions operating lawfully in practice?
Safeguarding risks are identified and recorded
- Have risks relating to privacy, dignity, and safety been formally assessed?
- Are they documented and subject to review?
Decisions are proportionate and evidenced
- Is there a clear, recorded rationale for any departure from standard provision?
- Can that rationale withstand inspection or legal scrutiny?
Oversight is active
- Has the governing body formally considered these issues?
- Is there a clear audit trail of discussion and decision-making?
The End of Informal Practice
A central implication of the draft Code is this:
Informal, assumption-based, or undocumented practice is no longer sufficient.
Policies based on:
- self-identification alone
- unwritten discretion
- or unexamined local guidance
are unlikely to be defensible unless supported by:
- safeguarding evidence
- legal reasoning
- and recorded decision-making
From Ambiguity to Accountability
For several years, schools operated in a climate of perceived uncertainty.
The new EHRC draft Code narrows that space considerably.
The direction is now clear:
- sex is defined in law
- single-sex provision is legitimate and protected
- safeguarding considerations are central
- decisions must be justified and recorded
Final Analysis
For school governors, the central question is no longer:
What does our policy say?
But:
Is this lawful, is it safe, and can we demonstrate that we have properly discharged our duties?
Where legal clarity exists and risks are foreseeable, inaction is no longer a matter of uncertainty.
It becomes a question of whether those responsible have properly discharged their duty.
Footnotes
¹ Equality and Human Rights Commission, Equality Act 2010 Draft Code of Practice for Services, Public Functions and Associations (London: EHRC, 2026), chap. 13, para. 13.3.
² Ibid., chap. 13, para. 13.5.
³ Ibid., chap. 12, para. 12.18.
⁴ Ibid., chap. 12, para. 12.21.
⁵ Ibid., chap. 12, para. 12.32.
⁶ Ibid., chap. 12, para. 12.33.
⁷ Ibid., chap. 12, para. 12.34.
⁸ Ibid., chap. 12, para. 12.11.
⁹ Ibid., chap. 12, para. 12.24.
¹⁰ Ibid., chap. 3, para. 3.47.
¹¹ Ibid., chap. 12, para. 12.40.
¹² Ibid., chap. 12, para. 12.14.
Note on Sources
Paragraph references relate to the draft Code as published in May 2026 and may be subject to revision prior to final statutory approval.
UPDATE
In a significant judgment delivered on 4 June 2026, the Scottish Court of Session held that West Lothian Council acted unlawfully by providing primary-school toilet facilities in which boys and girls shared communal toilet and wash-basin areas, even though individual cubicles were labelled male or female. Lady Poole ruled that the School Premises (General Requirements and Standards) (Scotland) Regulations 1967 require separate-sex sanitary accommodation, meaning the entire toilet space—including wash basins—not merely individual cubicles, and that the arrangements also amounted to indirect discrimination against girls under the Equality Act 2010 because they placed female pupils at a particular disadvantage in relation to privacy, dignity, hygiene, and safety.
The court rejected the Council’s reliance on government and EHRC guidance, stating plainly that “guidance is not law” and that public authorities must comply with statutory requirements as enacted. While the harassment claim failed, the court granted declarators that the toilet arrangements were unlawful, reinforcing the principle that the issue is fundamentally one of applying existing law rather than creating new legal obligations.¹ ² ³⁴
The significance of the judgment is simple: schools cannot assume that labelling individual cubicles satisfies legal requirements for single-sex provision if the wider facilities remain shared.
¹ DE and FG v West Lothian Council [2026] CSOH 52, Opinion of Lady Poole, 4 June 2026, paras. 1, 25–34.
² Ibid., para. 21. “Guidance is not law. The Council is obliged to obey the law, not guidance if that deviates from the requirements of the law.”
³ Ibid., paras. 47–56.
⁴ Ibid., paras. 71–76.