Charity Commission offers interim update on provisions of EHRC's code that clarify the law on matters of sex and gender
The EHRC Code of Practice for services, public functions and associations will soon come into force, and have legal status, including for charities.
Charities are therefore advised to take steps towards ensuring they can comply with the Code and the law, notably the changes regarding the definition of sex under the Equality Act 2010 as relating to biological sex. Such steps might, depending on the nature of a charity's work, include seeking legal advice. Meanwhile the Charity Commission is working at pace to update its Equality Act guidance for charities. It aims to publish this guidance during the Autumn.
The guidance will provide further support to charities in understanding how the Equality Act, and the Code, affect them as charities. For example, it will set out how the charities' exception can apply to charities, and how charities might take positive action under the Act.
But charities need to be aware that our guidance will not alter the legal principle set out by the April 2025 Supreme Court judgment, For Women Scotland v Scottish Ministers, that 'sex' for the purpose of the Equality Act means 'biological sex'.
Charities do not need to wait for the Commission's guidance to comply with the Act and the Code. It is the responsibility of trustees to ensure their charity is compliant with the Code, once it is legally enforceable, and unreasonable delays in taking steps towards compliance may be considered a breach of those responsibilities.
