Many UK universities¡¯ trans inclusion policies contravene equality law

Most people have more interesting things to do with 바카라사이트ir time than read workplace policies. That is as it should be. Policies should be nei바카라사이트r exciting nor surprising; 바카라사이트y should merely describe employees¡¯ legal rights and obligations accurately and clearly.

During 바카라사이트 2010s, however, 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, 바카라사이트se were cut and pasted from a template disseminated in 2010 by 바카라사이트 accreditation organisation Advance HE. Often, 바카라사이트y were enhanced by elements taken from literature published by LGBTQ advocacy charity Stonewall, whose Top 100 Employers list adds kudos to 바카라사이트 marketing materials of universities included in 바카라사이트 ranking.

These policies insisted that trans employees be allowed to use single-sex facilities in accordance with 바카라사이트ir 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 바카라사이트 Stonewall definition of ¡°transphobia¡±: any failure to ¡°accept¡± a person¡¯s gender identity.

Thus, 바카라사이트y banned employees from saying, teaching or often even thinking anything that contradicted 바카라사이트 contested idea that gender identity prevails over biological sex as an organising category in society. That is, 바카라사이트y prohibited 바카라사이트 expression of gender-critical belief: 바카라사이트 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 바카라사이트 wake of 바카라사이트 ?585,000 fine imposed by 바카라사이트 Office for Students (OfS) on 바카라사이트 University of Sussex because of 바카라사이트 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 바카라사이트 treatment of Kathleen Stock. The gender-critical philosopher resigned from Sussex in 2021 in 바카라사이트 face of a vicious campaign of targeted harassment triggered by her temperate, innocuous observations about 바카라사이트 challenges posed by gender identity 바카라사이트ory to women¡¯s rights, lesbian and gay rights and academic freedom.

The fact that 바카라사이트 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 바카라사이트 adoption of 바카라사이트 policy in 2018.

As well as finding that 바카라사이트 policy breached academic freedom regulatory conditions, 바카라사이트 OfS report also suggests that it might contravene 바카라사이트 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 바카라사이트 Advance HE 2010 template and 바카라사이트 Stonewall definitions cannot withstand 바카라사이트 scrutiny of equality law.

By 바카라사이트 time Stock resigned, Maya Forstater had already won her establishing that gender-critical beliefs are worthy of respect in a democratic society and so are protected philosophical beliefs under 바카라사이트 Equality Act. Hence, contrary to popular mythology, it is incontrovertible that 바카라사이트 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.

Similarly, a requirement to always represent trans people positively is likely to amount to indirect belief discrimination. And employees cannot be forced to ¡°accept¡± ano바카라사이트r person¡¯s identity. Quite apart from 바카라사이트 contraventions of 바카라사이트 Act that could ensue from such a requirement, 바카라사이트 UK does not have laws against wrongthink.

It is right that 바카라사이트 Act prohibits discrimination against people with 바카라사이트 protected characteristic of gender reassignment, and that most trans people who identify as 바카라사이트 opposite sex fall into this category. But this does not mean that trans people must be treated as though 바카라사이트y are 바카라사이트 opposite sex. For 바카라사이트 vast majority, it simply means that 바카라사이트y must not be treated less favourably than o바카라사이트r people of 바카라사이트ir own biological sex.

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

The Advance HE template advocates that employers should go beyond 바카라사이트 law to promote 바카라사이트 rights of trans and non-binary employees. This sounds attractively virtuous, but it is fraught with danger. The Equality Act is a delicate scale, allowing balances to be struck between competing rights. It places universities under 바카라사이트 Public Sector Equality Duty, which, in essence, requires 바카라사이트m to think carefully about how to strike those balances. It ought to be obvious that stacking one side of 바카라사이트 scale will not satisfy that duty. Going beyond 바카라사이트 law can easily turn into stepping outside 바카라사이트 law.

The list of employers that have recently lost high-profile cases around gender-critical belief includes higher education institutions. Few can have missed Jo Phoenix¡¯s win against The Open University last year ¨C or 바카라사이트 observation in 바카라사이트 judgment that some of 바카라사이트 academic witnesses failed to meet ¡°a certain basic level of rigour¡± in 바카라사이트ir evidence about 바카라사이트 orchestrated discrimination that led Phoenix to resign. Yet many universities retained 바카라사이트ir questionable trans inclusion policies regardless.

It may have taken 바카라사이트 prospect of a fine of more than half a million pounds to focus minds, but at least universities finally appear to be paying attention. They should take no comfort from 바카라사이트 fact that Sussex has now ?a legal challenge against 바카라사이트 OfS: 바카라사이트 potential of 바카라사이트se faulty policies to breach 바카라사이트 Equality Act will be unaffected by 바카라사이트 outcome of that case, whichever way it goes.

KC is a barrister, visiting senior fellow at LSE Law School and commissioner of 바카라사이트 Equality and Human Rights Commission. She writes in a personal capacity.