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EHRC Code of Practice - Charity Guidance

EHRC Code of Practice for charities: a structure to amend and use, key issues to think about and links to other guidance

EHRC Code of Practice - Charity Guidance

The EHRC Services, public functions and associations: Code of Practice (updated 14 Jul 26) comes into force on 5 Aug.  The Charity Commission E&W has said it will issue charity-specific guidance in the Autumn. In the meantime, it has made clear that charities remain responsible for complying with the law and considering whether any changes are needed to their policies, services or facilities.

Why This Guide has Been Written. The small charities and marginalised groups whom we prioritise mostly cannot afford professional legal support and many face additional barriers, such as English being a 2nd language and/or poor educational attainment.  I am not a lawyer, but this is an important issue and I cannot source any easily accessible guidance they might reasonably use, so I've done my best to create something to help them.

Our Aim.  To help charities to understand the issues and make their own decisions about what they should do, pending the Charity Commission guidance.  As with all of our work, we don't believe in telling people how to run their charities so we offer a structure that you can adapt to meet your own needs, flag issues that may be of particular importance to some charities and identify other sources of possible advice and support. We do not advocate for either side in the wider debate.

We recognise that some hold strongly differing views on these issues and respect their right to do so but we ask everyone to be mindful that there are vulnerable people on both sides of the debate. 

Those vulnerable people are the only ones we advocate for and we ask that anyone participating do so respectfully and constructively to avoid causing avoidable distress to anyone.

EHRC Code of Practice - Flexible Structure

  • Do We Need to do Make Changes?  Not every charity will need to change policies, services or facilities, so our suggested first step is understanding whether the Code affects your particular activities.
    • Think through where/if equality issues might arise in your charity.
  • How Might We Review our Position?
  • Check whether your objects (purposes) and governing document (constitution, trust deed,  articles of association, club rules etc) restrict who can benefit or participate in your activities.
    • Ask yourselves: who can benefit from our charity, who can participate in our activities, and why?
    • If your organisation limits who can join, take part or benefit, you should make sure there is a clear reason for doing so and that it follows both your organisation's rules and equality law.
    • Carry out a structured review of the impact on everyone - services, memberships, activities, facilities and/or programmes that are restricted to particular groups.
      • Review equality, safeguarding, volunteering, recruitment, membership, service-user and other policies, where relevant.
  • Many charities may conclude that no changes are required.
  • The Importance of Listening. Where appropriate, seek feedback from staff, volunteers, service users, members or other affected groups before making changes.
    • Ensure this is done in a way that enables everyone to feel able to make their voice heard, particularly any vulnerable people.
  • The Need for Balance. Different people may be affected in different ways.
    • In some circumstances charities may need to balance competing rights, needs and interests when making decisions.
      • Particularly for small charities, financial cost may be an issue in considering adjustments the charity may wish to consider (see below).
    • Where exclusion from a service may disadvantage any group, the Board should consider:
      • The impact of that disadvantage.
      • The legitimate aim they are seeking to achieve.
        • For example, to protect people's safety, privacy, dignity, wellbeing, or ability to access services.
      • Whether there are less intrusive ways of achieving that aim.
  • Check for Relevant Guidance. Check if there's any specific guidance relevant to your charity.
    • The EHRC guidance contains specific sections that may be relevant - see my non exhaustive checklist below.
    • If you work under a sports national governing body, are part of a faith group or federation or other charity that is part of a specialist network, you may wish to check to see if any relevant guidance has been issued by them.
      • If you hold a Public Sector contract, you may wish to check to see if there is a requirement to comply with the policies of the contracting body.
    • For those in Scotland and Northern Ireland, see the extant regulators' guidance below.
    • I have included a section below with other possible sources of guidance.
  • Deciding on Our Position. Ensure Board discussions are evidence-based and focused on complying with the Law.
    • The Supreme Court judgment and EHRC Code indicate that:
      • References to sex in the Equality Act mean biological sex.
      • Whilst people continue to be protected under the separate protected characteristic of gender reassignment.
      • But there are areas on uncertainty - see below.
    • If this distinction is important to your charity's work, I suggest that you seek specialist legal advice (see below).
    • Trustees may hold strong personal views, but they are required at all times to act in the best interests of their charity.
      • Rather than on the basis of their personal views, however genuinely or strongly held.
  • Transparency in Decision Making. If it is decided that a change is needed, your charity should be able to explain:
    • What you were trying to achieve.
    • What evidence you considered.
    • How different groups might be affected, and.
    • Why you believe your decision is fair and reasonable.
  • Record Your Decisions. Keep a written record of the evidence considered, the factors discussed, and the reasons for the final decision, including the relevant sections of the EHRC guidance, if appropriate.
  • Ongoing Monitoring. Ensure someone is nominated to monitor for further changes that may impact your charity.
    • The Charity Commission E&W will issue its guidance in the Autumn.
    • Some organisations have highlighted the practical challenges involved in implementing these changes, so we expect that further guidance will continue to emerge; see areas of uncertainty below.
      • As it does, various specialist groups may well issue their own clarifying guidance.

Your Aim. The Board may not be able to get everyone to agree with their decision(s) but they do need to be able to show that they acted in the best interest of your charity by considering the evidence, listening to those affected where appropriate, and acting in good faith to comply with the law. Personally, I'd also include that acting with kindness and respect towards everyone should be a 'must do' expectation of everyone in a charity.

Complaints and Anti-harassment

Given the strength of feeling surrounding these issues, you may wish to review complaints procedures and ensure staff and volunteers know how to respond respectfully to any concerns that might be raised.

People may disagree strongly about these issues, which is understandable.  However, trustees, staff, volunteers and service users should be able to discuss them without harassment, bullying, intimidation or personal attacks.

EHRC Code of Practice - Checklist

Below is an attempt to highlight where the Code includes specific guidance and whom this may be relevant to. If any apply to your organisation, review the relevant EHRC guidance and seek advice where appropriate.

Area Relevant Code Section/Heading
Single-sex services Single and Separate-Sex Services
Women's charities and support services Single and Separate-Sex Services
Sport and physical activity Sport Exceptions
Faith groups Religion or Belief Organisations and Charity Exceptions
Faith-based charities Charity Exceptions
Membership organisations Associations
Community centres and village halls Services to the Public and Associations
Arts and cultural organisations Services to the Public
Disability organisations Discrimination, Reasonable Adjustments and Associations
Youth groups and educational charities Services to the Public, Children and Young People
Data collection and monitoring Clarification about Sex and Special Category Data and equality monitoring provisions
Employment and volunteers Primarily covered by the EHRC Employment Statutory Code rather than the Services Code
Grant-making and beneficiary restrictions Charity Exceptions

Areas of Uncertainty in the EHRC Code

There are several areas where lawyers, charities, service providers and commentators from across a wide range of viewpoints have identified practical uncertainty or the need for further guidance.  I think it will take some time for this to emerge.
The Code provides a framework rather than a checklist. Concepts such as proportionality, legitimate aim, balancing competing rights, assessing evidence and deciding what arrangements are reasonably practicable will often require charities to exercise judgement based on their own circumstances.
I can't find any specific small organisation dispensation but the Code does recognise that organisations differ greatly in size, resources and facilities.  My reading of this is that it recognises the limitations you operate under but doesn't remove the need to explain your actions, if these impact your decision making.

Making Decisions Relating to Financial Cost

Financial cost is only one factor but, in the current very difficult funding environment, charities often have to balance what they would wish to do against what they can realistically afford to.

Can we afford it?  The first question may be whether the charity has access to the funding needed to make a particular change.

  • Example 1 – Not currently affordable. Most of the charity's income is restricted and can only be spent on specific projects. Most unrestricted income is already needed to meet essential costs such as rent, utilities and staff. The cost of making the change would significantly exceed the funding currently available. In these circumstances, the charity may conclude that it cannot make the change at present, even if it would like to do so.
    • Alternatives might include exploring funding opportunities or including the cost in future plans and budgets.
  • Example 2 – Affordable. The charity either has sufficient budget available or has unrestricted reserves that could cover the cost. In this situation, the charity could choose to fund the change if, after considering all relevant factors, it decides that is the right course of action.

If the Board decides that a proposed change is not affordable, it should be able to explain how it reached that conclusion and what information it considered.

Considering Opportunity Cost. The Board should also consider what else the money could be used for. This is sometimes called the opportunity cost. For example:

  • Would funding the change mean cancelling another project?
  • Would it require a reduction in a service?
  • Would it reduce reserves below the charity's agreed target level?
    • Where reserves are involved, trustees may need to consider whether using those reserves would be in the charity's best interests and consistent with their reserves policy.

Another way to view this is by looking at value for money.  That is, can the cost be justified, given the impact this would have for our charity?

In either case above, the Board should consider all relevant factors, including legal obligations, affordability, impact on affected groups, available alternatives and the charity's objectives. They should then make the decision they believe is in the best interests of the charity.

 Other Sources of Guidance

  • You can source pro bono providers using the Help Finder HR and Legal search.
    • If you have legal expenses insurance, check what support may already be available before paying for legal advice.
  • The EHRC provide help and advice.
  • For employment related issues, Acas have a free helpline.
  • If you are part of a wider group or network, you may wish to seek advice from them.
  • If you have taken a position on one side or the other in the debate, the relevant campaigning groups will almost certainly have published their own thinking.

Here are some other sources of guidance.

Other Charity Regulators' Guidance

OSCR (Scotland)

I cannot find any new OSCR guidance specifically on the 2026 EHRC Code. However, OSCR already publishes guidance called Charities and the Equality Act 2010: what charity trustees should consider. That guidance tells trustees to:

  • Read relevant EHRC guidance.
  • Consider whether their charity complies with equality law.
  • Review any restrictions in their governing document.
  • Consider whether restrictions remain justified.
  • Seek specialist advice on complex equality issues.

CCNI (Northern Ireland)

CCNI has published Equality Guidance for Charities and updated versions remain available in 2026. CCNI says:

  • Trustees must ensure their charity complies with equality law.
  • The guidance is intended to help charities understand how equality law affects service delivery.
  • Charities with complex equality issues should seek advice from the Equality Commission for Northern Ireland.

Our Approach in Creating This Guidance

In writing this guide, we have done our best to use terminology that the vast majority of ordinary people would understand but that has created a trade-off in accuracy for an issue that is based on the Law and complex.  It is a guide to understanding the issues but is not and cannot be professional advice.

Our web page is grounded in the Court's decision and EHRC guidance, and informed by online articles by reputable organisations but it does not reflect publications or input by either side in the debate.  That's not because we do not believe their views are valid but because any use of such material by ourselves, might well result in incorrect suggestions of bias on our part.  This would potentially significantly undermine its credibility.  We regret that we have been unable to reflect all viewpoints, as we normally would.

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This Article on the EHRC Code of Practice Guidance Is Not Professional Advice

This article on the EHR equalities guidance is for general interest only and does not constitute professional legal advice.  I'm not a lawyer, so not able to provide this, and I cannot write guidance that covers every charity or eventuality.  I have included links to relevant regulatory guidance and resources to help you.  However, in making use of my work you accept that I have no responsibility whatsoever for 3rd party content and that you will check to ensure that whatever you create reflects correctly your charity’s needs and your obligations.  In using this resource, you accept that I have no responsibility whatsoever from any harm, loss or other detriment that may arise from your use of my work.  If you need professional advice, you must seek this from someone else. To do so, register, then login and use the Help Finder directory to find pro bono support. Everything is free.

Ethics note: AI was used primarily in researching and stress testing this web page but always under the control and direction of a human.

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