Equality law in the United Kingdom is a creature of statute. That is the orthodox position. Yet in recent years an increasing proportion of what practitioners treat as “equality law” has been shaped not through Acts of Parliament or binding judicial precedent, but through a growing body of soft law: guidance, codes, policy circulars, consultations, statutory FAQs and regulatory statements.
By Oscar Davies, Barrister, Garden Court Chambers
These materials sit formally outside the hierarchy of legal sources, but in practical terms they frequently direct how employers, public bodies and institutions behave. Soft law is rapidly becoming the architecture through which equality norms are filtered, interpreted and, at times, reframed.
The Equality and Human Rights Commission’s (EHRC) stance following the Supreme Court’s decision in For Women Scotland (FWS) is a recent illustration of the delicacy of this terrain. The judgment itself did not attempt to provide a detailed, granular account of what constitutes “sex” within the Equality Act 2010. This omission is unsurprising: appellate courts often resist defining complex socio-legal concepts beyond what is required for the dispute before them. However, the absence of judicial elaboration has created an interpretative vacuum. Into that gap, various forms of soft law – formal statements, explanatory notes and compliance guidance – have begun to pour. The risk is that regulatory gloss starts to function as de facto legal obligation, even if Parliament never legislated for such outcomes.
The result is that the EHRC’s interim update of April 2025 indicated that trans people must be excluded from single sex spaces, whereas the SC only went so far as to say they may be in specific circumstances, as long as it is a ‘proportionate means of achieving a legitimate aim’ (reflecting Sch.3 EqA). Several companies have followed suit taking the trans exclusionary blanket position as law, when in fact that is not what the law says.
It is a quiet but significant shift: equality rights that exist on paper remain unchanged, yet their practical operation is reshaped by documents that are neither binding nor subject to democratic scrutiny. This article explores how that drift occurs, why it matters, and what a more coherent approach to soft law might require.
What Soft Law Is, and Why It Matters
Soft law refers to non-binding instruments that provide direction, interpretation or suggested best practice. In equality law, this includes EHRC Codes of Practice, Home Office circulars, Cabinet Office guidance, BSB consultations, employer templates, and various explanatory materials accompanying legislative schemes. These documents are not formally enforceable. Yet they are relied upon with remarkable frequency by institutions seeking clarity, consistency and risk management.
Soft law’s appeal lies in its speed and accessibility. Legislation is slow; judicial interpretation slower still. Guidance can be issued quickly, revised incrementally, and framed with considerable specificity. For organisations dealing with nuanced or politically sensitive equality questions, clear guidance offers reassurance. However, this efficiency comes at a constitutional cost. Soft law occupies a legal space where effects can be profound but accountability limited.
In equality law especially, soft law performs pedagogical work. It teaches employers and public bodies what they should do, or at least what they believe they should do. Over time, these expectations begin to feel indistinguishable from mandatory legal obligations.
How Soft Law Quietly Alters Rights
- Reinterpreting statutory terms
Soft law frequently supplies definitions or interpretative glosses not contained in the Equality Act. Terms such as “sex”, “gender reassignment”, “reasonable”, “proportionate” or “belief” are often expanded, qualified or narrowed through examples. While this can assist comprehension, it can also shift the statutory balance. A subtly altered definition can recalibrate the boundary between permitted and prohibited conduct without the involvement of Parliament or the courts.
- Suggesting duties that do not exist
Some guidance presents permissive exceptions as though they were required exclusions. Examples include framing certain exclusions as “appropriate” or “required”, when the statutory scheme only provides that they may be justified if proportionate. The structure of the Equality Act is deliberately flexible: it asks fact-sensitive questions. When soft law implies that certain outcomes are presumptive, nuance is lost.
- Shaping evidential expectations through examples
Soft law often offers behavioural hypotheticals. Although merely illustrative, they can influence how tribunals approach reasonableness or proportionality. If examples lean consistently in one direction, the cumulative effect is to create an evidential tilt that does not originate in statute.
In these ways, soft law does not need binding force to exert substantial practical force.
Where Soft Law Rewrites Equality in Practice
Sex and gender: from permissive to compulsory
Following FWS, some regulatory commentary, such as the EHRC interim update, has implied that certain exclusions are not merely permitted but expected. Yet the Equality Act retains a proportionality framework. A permissive exception is not a mandate. The risk is that regulated entities – schools, service providers, employers – internalise a perceived obligation based not on statutory text but on how guidance is phrased. This can generate a distorted legal landscape where individuals experience restrictions that Parliament never enacted.
Disability: narrowing the idea of “reasonableness”
Recent updates to Acas guidance, alongside new disability-inclusion materials from professional bodies and large public-sector employers, have produced longer and more detailed lists of suggested reasonable adjustments. While these resources aim to improve awareness, many employers have begun to treat these examples as a definitive menu rather than an illustrative starting point. The result is a subtle narrowing of the concept of “reasonableness”: adjustments that fall outside the listed options are often treated as exceptional or impractical, even where they may be appropriate for the individual concerned. This checklist-driven approach, shaped by guidance rather than statute, risks undermining the fundamentally individualised, context-specific assessment that disability discrimination law requires. In practice, the growth of soft-law templates expands the appearance of flexibility while constraining its real-world application.
Religion or belief: over-policing and under-protecting
Soft law sometimes presents belief-related conflicts in exaggerated terms, prompting risk-averse employers to over-regulate lawful expression. Conversely, insufficient detail in other contexts can leave employers uncertain about when accommodation is appropriate. The result is an uneven and often cautious application of rights – an artefact of guidance rather than statute.
Who Benefits, and Who Does Not
Soft law generally benefits institutions. It provides clarity, reduces uncertainty, and allows risk managers to create stable compliance frameworks. Regulators, too, may favour soft law because it enables behavioural influence without the rigour of legislative change. Large organisations appreciate the consistency it brings.
But individuals – particularly those whose rights depend on context-sensitive assessment – can lose out. Equality rights shrink not through formal amendment, but through interpretative drift. A statutory framework designed to be flexible and protective becomes filtered through administrative convenience.
Soft law, in short, can homogenise where equality law intends differentiation.
The Constitutional Problem: Rights Without Scrutiny
Soft law occupies an ambiguous constitutional position. It shapes expectations while evading the scrutiny applied to legislation. It influences adjudication without undergoing the rigour associated with judicial reasoning. It is often drafted without full consultation, and revised without public announcement.
Equality law deals with matters – identity, belief, disability, autonomy – that go to the core of personal dignity. It is therefore concerning when rights can be informally narrowed through documents that lack clear democratic legitimacy. The principle of legality requires that rights be altered openly and deliberately, not indirectly or by inference. Soft law risks creating a “shadow amendment” process in which real-world equality norms evolve independently of statutory frameworks.
When Case Law Functions Like Soft Law
Although judicial decisions are binding, not all judicial text carries equal authority. Obiter remarks, compressed formulations, and headnotes can become detached from their procedural context. A single sentence, repeated frequently in secondary commentary or training materials, can acquire an authority that exceeds its doctrinal weight.
In this sense, case law can become a species of quasi-soft law: not in its binding core, but in how it is read, summarised and operationalised. FWS is a case in point. The Supreme Court deliberately refrained from defining “sex” in granular detail. Yet the absence of elaboration has encouraged others to fill the gap with interpretative assumptions treated as though the Court endorsed them. Silence has become guidance; guidance, in turn, is treated as normative practice.
Practitioners must remain alert to this phenomenon. The distinction between the legal holding of a case and the interpretative culture that develops around it is significant.
Towards a More Coherent Framework
If soft law is to support rather than distort equality rights, several principles are required.
- Transparency
Guidance should identify clearly where it simplifies statutory provisions or adds interpretative context.
- Structured consultation
Guidance affecting protected groups should be subject to consistent, publicly reported consultation.
- Regular review mechanisms
Soft law should not be allowed to ossify. Periodic revision prevents outdated assumptions from becoming embedded norms.
- Clear differentiation between law, best practice and policy preference
Regulators should distinguish these categories explicitly. Without this, organisations treat all guidance as obligatory, which undermines the architecture of the Equality Act.
Soft law should illuminate the statutory scheme, not obscure it.
Conclusion: Equality Must Remain Grounded in Law
The Equality Act’s promise depends on the clarity, legitimacy and predictability of the rights it confers. Soft law has a valuable role in supporting understanding and consistent application. But it cannot be permitted to reconfigure rights by implication, drift or omission.
Equality rights should not change through revised footnotes, informal statements or extrapolated assumptions. They should change – if they are to change at all – through democratic processes, reviewed by parliament and consultation, or judicial decisions that withstand scrutiny. Soft law may guide, but it must not govern.
If equality law is to remain equal, it must remain law.
Oscar Davies is a discrimination barrister at Garden Court Chambers
