Mick Hartley

Akua Reindorf in Times Higher Ed – Many UK universities’ trans inclusion policies contravene equality law:

During the 2010s,…without widespread consultation or announcement, a tranche of strikingly similar policies were adopted by higher education institutions that afforded entitlements to trans employees going significantly beyond what was required by law.

In large part, these were cut and pasted from a template disseminated in 2010 by the accreditation organisation Advance HE. Often, they were enhanced by elements taken from literature published by LGBTQ advocacy charity Stonewall, whose Top 100 Employers list adds kudos to the marketing materials of universities included in the ranking.

These policies insisted that trans employees be allowed to use single-sex facilities in accordance with their gender identity. They stated that “misgendering” was a disciplinary offence. Many mandated that trans people always be represented in a positive way. And many adopted the Stonewall definition of “transphobia”: any failure to “accept” a person’s gender identity.

Thus, they banned employees from saying, teaching or often even thinking anything that contradicted the contested idea that gender identity prevails over biological sex as an organising category in society. That is, they prohibited the expression of gender-critical belief: the idea that sex is binary and immutable and (most importantly) that it sometimes matters.

These policies have now begun to disappear from university websites in the wake of the £585,000 fine imposed by the Office for Students (OfS) on the University of Sussex because of the potential of its Trans and Non-Binary Equality Policy Statement to stifle academic freedom and free speech. The fine follows a four-year investigation prompted by the treatment of Kathleen Stock. The gender-critical philosopher resigned from Sussex in 2021 in the face of a vicious campaign of targeted harassment triggered by her temperate, innocuous observations about the challenges posed by gender identity theory to women’s rights, lesbian and gay rights and academic freedom.

The fact that the vilification of Stock was permitted to escalate so shamefully must be due, in no small part, to a university culture that had been formalised and cemented by the adoption of the policy in 2018.

As well as finding that the policy breached academic freedom regulatory conditions, the OfS report also suggests that it might contravene the UK’s Equality Act 2010. That observation need not have been so tentatively expressed. A remarkable series of successful cases brought by gender-critical employees has shown clearly that policies replicating the Advance HE 2010 template and the Stonewall definitions cannot withstand the scrutiny of equality law.

By the time Stock resigned, Maya Forstater had already won her landmark employment appeal tribunal victory establishing that gender-critical beliefs are worthy of respect in a democratic society and so are protected philosophical beliefs under the Equality Act. Hence, contrary to popular mythology, it is incontrovertible that the expression of gender-critical belief cannot be banned outright in a higher education workplace. That includes “misgendering”, which in some circumstances can be an unobjectionable manifestation of gender-critical belief.

And that's not all.

It follows that trans people do not have a legal right to choose single-sex facilities matching their gender identity. An employer that allows this practice risks breaching both Equality Act prohibition on indirect sex discrimination and health and safety law.

Finally, with Sussex University deservedly leading the way, the trans dominoes in higher education are beginning to tumble.