Transgender individuals in universities

Transgender rights and activism are vociferously debated in universities. There have been numerous rows featuring universities across England which have received significant press attention. To name just a few examples:

• Last year, Professor Kathleen Stock resigned from the University of Sussex in the context of protests about her views on gender identity (see BBC article here).
• Earlier this year, academics at Cardiff University who signed a letter asking the university to review its relationship with Stonewall due to concerns about freedom of speech had their names circulated on leaflets calling them transphobic and featuring an image of a woman holding a gun (see Times article here). An online petition for a Welsh Government inquiry into the campaign of trans rights activists at the university currently has over 2,000 signatures.
• Raquel Rosario-Sanchez, a feminist academic, recently lost her legal claim against the University of Bristol for failing to protect her from bullying and harassment by trans activists.

In this article, I introduce the key legal provisions relating to transgender individuals and some new ECHR guidance, before exploring some practical and topical questions for universities. This is a complex area, so my commentary is necessarily high-level.

A general point worth bearing in mind is that the statutory provisions relating to transgender are, relatively speaking, old when compared with the evolving body of case law (and shifting public attitudes) on issues relating to transgender individuals. Some of the language of the legislation is considered out of date. Moreover, many of the issues that we grapple with today were not in the minds of the draftsmen when they drafted the legal provisions we rely on – we are trying to use the legislation to answer questions that it was never intended to answer. Updates to the legislation or future court decisions could shift the direction or focus of the law. It is therefore important that universities’ approaches are kept under regular review.

Who is protected under the Equality Act 2010?

The Equality Act 2010 (EqA) prohibits discrimination on the grounds of various “protected characteristics”, including “sex”, “gender reassignment” and “belief”. Taking these in turn:

Sex

Courts are likely to apply a binary and biological understanding of sex, so a person’s legal sex for the purposes of the EqA is their biological sex assigned at birth. The only way for a person to change their legal sex is to obtain a gender recognition certificate under the Gender Recognition Act 2004, which includes a medical element and does not rely on self-identification alone.

Gender reassignment

Stonewall defines trans as “an umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth”. “Gender reassignment” is a narrower concept. The EqA says that protection applies if “if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex”. Given that a person “proposing to undergo” the process of transitioning is protected, a person need not have undertaken any actual steps to be protected. There is an ongoing debate about whether non-binary students are protected – in the case of Taylor v Jaguar Land Rover Limited, an Employment Tribunal ruled that “a non-binary, gender fluid person” was protected, but this decision is not binding on other courts and some practitioners consider that this case was wrongly decided.

Belief

In last year’s case of Forstater v CGD Europe, the Employment Appeal Tribunal (EAT) found that a belief that biological sex cannot be changed (is “immutable”) should be protected as a philosophical belief under the EqA.

What do universities need to know about the new ECHR guidance for single-sex services?

The EHRC has published new guidance on single-sex service providers. The guidance is intended for those providing services either only to one sex or separately to each sex. In general, universities are covered by a different regime under the EqA (Part 6: Education) and universities are not specifically mentioned in this guidance. However, in some circumstances a university is regarded as a “service provider” under the EqA, for example where a university hires out its sports facilities or lecture theatres, and therefore there are a number of points that are of relevance to universities. Further, this guidance is indicative of the way statutory bodies are interpreting the gender reassignment provisions of the EqA and the way any future university-specific guidance could be framed.

The EqA allows for the provision of separate or single-sex services in certain circumstances under “exceptions” relating to sex. A separate or single-sex service provider can prevent, limit or modify trans people’s access to the service if it can show that it has a “legitimate aim” and that its actions are a proportionate way of achieving that aim.

The guidance gives recommendations on what to consider in the decision-making process. It states you should:

1. Treat all individuals with dignity and respect;
2. Be aware that trans people might need to access services according to their biological sex rather than acquired gender;
3. Develop and apply a policy;
4. Consider the rights and needs of trans people alongside the rights and needs of other service users;
5. Balance the different interests and needs of those who use, or wish to use, your service; and
6. Record the evidence base and rationale for decision-making.

Could hosting a gender critical speaker amount to harassment of staff and students?

Harassment is defined by the EqA as unwanted conduct related to a protected characteristic which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. If someone intends to harass (that is their “purpose”) then the conduct will amount to harassment. When the impact is not deliberate, there is a threshold that needs to be met for the conduct to amount to harassment – the courts will consider the perception of the person who feels harassed, but also the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

In the case of a gender critical speaker, unless they intend to create a harassing environment – which seems unlikely – a key question will be whether it is reasonable for staff and students to have that reaction to what is said or planned. This will depend on the facts of the particular case. However, as a general proposition, it may not be reasonable if the speech itself, and the way they express or manifest their beliefs, is not unlawful. Of relevance here:

• The Forstater case confirmed that both people with gender critical views and trans people have protection from discrimination and harassment under the EqA. Gender critical beliefs can be protected under the EqA even if they might be controversial or cause offence. However, it someone manifests or expresses their belief inappropriately (for example, with a threat of violence), that behaviour will not be protected by the EqA. In other words, people are entitled to express their views and criticise those of others (gender critical or pro-trans rights) but are not entitled to do so with threats and intimidation.
• Article 10 ECHR provides a right to freedom of expression, which may be qualified as “prescribed by law and necessary in a democratic society” to meet certain aims. Again, freedom of expression includes ideas that might be regarded by some as offensive or shocking.
• By virtue of section Education Act (No 2) 1986, universities must take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for staff, student and visiting speakers. This reflects the unique role of universities in fostering public debate.

Therefore, the holding of different beliefs should be tolerated, and respectful expression or debate of beliefs is likely to be lawful. The point at which speech becomes so deplorable as to be impermissible may not be easy to identify.

Do universities have a duty to protect gender critical students from harassment by other students?

In the Rosario-Sanchez case referred to above, the County Court considered that students who perceived Rosario-Sanchez as harbouring anti-transgender views were entitled to vociferously protest against those views (for example, by using the term “TERF” (an acronym for “Trans Exclusionary Radical Feminist”)) but that they were not entitled to try to close down her views by threats and intimidation (for example, with social media posts and T-shirts referring to punching TERFs).

However, the Court concluded that there was no duty of care owed by the university to protect students from other students. It considered that the university was not in loco parentis factually or legally in respect of any one of its adult students and was not in control of the alleged student harasser. The EqA claims were also not upheld on the specific facts of the case.

As the Court was at pains to point out, this case was not about the general righteousness of the opinions held in the trans or feminist communities, but rather it was about the university’s management of the conflict – so in that sense this case serves as a reminder of the importance of a careful and impartial internal process to investigate staff or student concerns.

Should trans students be allowed to use single-sex toilets / changing rooms of their acquired gender?

The use of single-sex toilets/changing rooms is often cited as a potentially vulnerable to abuse if transgender people are allowed to use the facilities of their acquired gender. The reality is there is no proven link between allowing transgender people access to their chosen facilities and abuse. We recommend taking a tailored assessment and documenting the decision-making process. Ideally students should be allowed to use the facilities of the gender they identify with. However, a university could refuse to allow a student to use their preferred facilities if refusal is justified as a “proportionate means of achieving a legitimate aim”. If such a justification could not be shown, the refusal to allow the student to use their chosen facilities would amount to unlawful indirect discrimination. If there are good reasons why it is not currently practical to allow trans students to use their preferred facilities, universities should consider reasonable alternatives such as alternative changing areas, gender neutral changing areas, or use of a private area.
The ECHR guidance referred to above contains a few relevant illustrative examples:

• A gym has separate-sex communal changing rooms. There is concern about the safety and dignity of trans men changing in an open plan environment. The gym therefore decides to introduce an additional gender-neutral changing room with self-contained units.
• A small cafe with limited space and facilities for public use has separate lockable, self-contained male and female toilets with hand basins in single units. To ensure they are fully inclusive, and to make the most effective use of the available facilities, the cafe decides to make them all gender neutral.
• A community centre has separate male and female toilets. It conducts a survey in which some service users say that they would not use the centre if the toilets were open to members of the opposite biological sex, for reasons of privacy and dignity or because of their religious belief. It decides to introduce an additional gender-neutral toilet. It puts up signs telling all users that they may use either the toilet for their biological sex or to use the gender neutral toilet if they feel more comfortable doing so.

Universities as employers will also need to bear in mind their obligations under health and safety legislation, which requires them to provide either single-sex facilities or unisex facilities with lockable cubicles.

Should trans students be allowed to participate in single-sex sports of their acquired gender?

There is an exception in the EqA allowing for discrimination against trans people where this is necessary to ensure safety or fair competition of a gender-affected activity. A gender-affected activity is defined as an activity where “physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex”.

Some sports, such as rugby, present risks on safety grounds. For other sports, such as track events, safety is not an issue, but fair competition might be a concern. We suggest that universities take account of the policies adopted by national sporting bodies. Whilst not legally binding, they probably represent best practice within that particular sport at a particular level of competition. Some prioritise inclusion, some prioritise safety and some take a hybrid approach in an attempt to retain fair competition. It is possible that a lot of sporting bodies will reform their approaches within the coming months or years, so this is another area where your practice needs to be kept under review.

Of course, taking part in an internal university match is very different from competing in the Olympics, so for lower-level sports it may be appropriate to try to accommodate trans students in the sport of their desire so far as reasonably possible, save where there are safety concerns.

If you require further information about anything covered in this briefing, please contact Alice Kendle or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, May 2022