EHRC guidance on single-sex spaces a ‘big shift’ for universities

UK universities have been warned against making “rushed decisions” after new equalities guidance stated that single-sex facilities must be used on the basis of biological sex.

A long-awaited code from the Equalities and Human Rights Commission (EHRC) was published late on 21 May, having been approved by ministers after months of wrangling.

As expected, the guidance confirmed that, after a landmark Supreme Court ruling that the definition of a woman under the Equality Act should be based on biological sex, service providers should review how single-sex spaces are used.

Organisations such as universities can lawfully restrict trans people from using facilities not designated for their biological sex but should offer a third or gender-neutral space as an alternative, it says.

However, the guidance adds that it was “unlikely to be either practical or appropriate” for organisations to challenge a person on their sex before using bathrooms, in a softening of approach since draft rules were circulated last year.

Many universities were awaiting the publication of the guidance before considering what to do with their own single-sex facilities, with the few that have tried to make changes encountering opposition from all sides.

Amira Campbell, president of the National Union of Students, said the guidance “will functionally exclude trans people from engaging in public life”, and urged parliament to “stand up for trans equality by disapproving this draft legislation”.

But Helen Joyce, director of advocacy at sex-based rights charity Sex Matters, said the rules had a “simple message” that “only female people can enter female spaces, and only male people can enter male spaces”.

This will be a “big shift” for many universities, Joyce said, after many had adopted “self-ID” policies over the last decade. The new guidance “leaves no excuses for universities to continue with such unlawful policies”, she said, warning that institutions could face claims of sex-based or sexual harassment.

Joyce said universities would be advised to “return with all possible haste to sex-based policies concerning access to toilets, changing rooms and the like” and those that “drag their feet can expect expensive legal challenges that they are overwhelmingly likely to lose”.

But Jo Grady, general secretary of the University and College Union (UCU), urged caution on what she called a “significant and unsettling moment…for trans people everywhere”.

“Employers need to be aware that their duties under equality and employment law remain in force,” Grady said.

“Universities and colleges are responsible for protecting their staff and students, not putting them at risk through rushed or inconsistent decisions.”

This week the union has been locked in a battle with the University of Reading over its approach to trans equality.

A letter from Grady to vice-chancellor Robert Van de Noort circulated online said that the institution had “introduced sweeping changes to facilities access” without assessing their impact or consulting those affected.

The effect, according to Grady, was that “trans staff and students are being told they may have to work and study in buildings without appropriate facilities” and “accessible toilets have been redesignated against the wishes of disabled staff”.

Grady said this was not a “neutral response to legal uncertainty” but a “set of choices” and she feared it would become a “template for others” in the sector. 

In response, Parveen Yaqoob, deputy vice-chancellor Reading, told Times Higher Education: “We welcome engagement with UCU and others on this issue and are continuing to work openly with students, staff and union representatives. We will continue to provide appropriate support and facilities for everyone in our community.”

Sector bodies that advise universities on equality issues were also grappling with what the changes mean.

David Bass, director of inclusion and governance at Advance HE, said “higher education institutions need clarity in applying equality law”.

“We welcome the draft code and recognise that universities will need to work carefully through the implications for facilities, services and student experience.

“There remains, however, a need for greater clarity in the employment context, to help universities apply the law consistently and with confidence.”

tom.williams@timeshighereducation.com