Don’t dither on updating trans policies, EHRC chair tells v-cs

UK universities risk being sued if they delay updating their policies on single-sex facilities following the landmark Supreme Court ruling that confirms sex means “biological sex”, the chair of the Equality and Human Rights Commission (EHRC) has warned vice-chancellors.

Speaking to Times Higher Education after addressing Universities UK’s annual conference at the University of Exeter on 3 September, Kishwer Falkner explained the Westminster government’s failure to quickly adopt the EHRC’s draft guidance on the 16 April ruling - which states organisations can exclude trans women from female-only toilets “if it is a proportionate means of achieving a legitimate aim” - should not prevent universities from taking steps to update their own policies.

Some universities have stated they are awaiting the EHRC’s final guidance before enacting any changes to their policies on single-sex space access or prohibiting biological males from female-only sport, with the final guidance yet to face a full parliamentary scrutiny or wider consultation.

However, Falkner stressed universities should not wait until the interim non-statutory advice from the EHRC becomes statutory advice that has gained parliamentary approval.

In April, the Supreme Court ruled that in the 2010 Equality Act, the terms man, woman and sex were always intended to refer to biological sex after a case brought by the gender-critical group For Women Scotland.

“My first message to vice-chancellors was that they now have new duties since the For Women Scotland judgment – they need to get on with it,” said Falkner on her address to university leaders, which took place behind closed doors.

“That final guidance will help with practical implementation and it will help tribunals to reach judgments…but the guidance is important the moment it was delivered, even if it will need to be consulted on and laid in parliament for 40 days. It will help organisations to fulfil their obligations,” Falkner explained, noting the rapid turnaround between the 16 April ruling and the EHRC’s draft advice on 25 April.

“We have done our job and delivered for the British people with pace, speed and accuracy; now a new academic term is starting. You cannot wait until the guidance becomes statutory before you start fulfilling your obligations,” said Falkner.

The EHRC’s view on these matters was already clear given it previously published guidance in 2022, continued Falkner. “It is no secret that we published our guidance on single sex exemptions as long ago as 2022. It was based on a correct reading of the Equality Act,” she said.

“Universities have had since 2022 to comply with the law. If they do not provide single-sex provision adequately, then under the Health & Safety at work regulation and other laws designed to protect dignity and safety they will be open to charges that they are discriminating against people who are not protected,” she said.

Speaking more widely, Falkner also welcomed the introduction of recent freedom of speech legislation on campus, saying the new laws should help scholars and students to speak more freely.

“Given the EHRC’s role in supporting free speech in certain cases involving the protection of beliefs, we recognise the act’s role in imposing certain duties on institutions. These duties are now enshrined; we would not be doing our job if we didn’t recognise that human rights need to be renewed and defended on a periodical basis,” said Falkner.