A prestigious Russell-group university may have broken equality law by barring staff from promotion unless they support its pro-trans diversity policy.
As reported by the Telegraph, King’s College London (KCL) told members of staff they cannot be promoted unless they sign up to the whole of the university’s “equality, diversity and inclusion [EDI] ambitions”.
The policy states that academics should provide evidence of what they have done to promote inclusion, such as taking part in an activity run by Stonewall; that is, the charity that for many years has demanded “no debate” on its position on gender identity theory, and recently came under fire for continuing to state that the effects of puberty blockers on young children are “reversible”, despite the findings of the NHS-England commissioned Cass Review
Dr John Armstrong, a reader in financial mathematics at the college, first raised his concerns about the university’s EDI policy in 2022. When nothing happened, he approached the gender-critical campaign group Sex Matters to ask whether the rule was lawful.
Sex Matters then commissioned a barrister to look at the case, and she found KCL’s policy was potentially in breach of the Equality Act 2010 (EqA) and the Employment Act, and that if KCL persists in placing a requirement upon applications for promotion that they demonstrate their support of the institution’s EDI ambitions, it could find itself in breach of the Higher Education (Freedom of Speech) Act 2023, which is expected to come into force later this year.
The legal opinion, by Akua Reindorf KC, found that KCL’s “various policies, training materials and guidance relating to the protected characteristics of sex and gender reassignment are incorrect, as a matter of law, in several substantial respects”.
Ms Reindorf was particularly critical of KCL’s ‘Introduction to Equality, Diversity & Inclusion’ e-learning module, which members of academic staff wishing to apply for promotion are expected to complete. The barrister described it as “contain[ing] numerous incorrect or misleading assertions” about the EqA.
Given that conflicts between ‘trans rights’ and ‘women’s sex-based rights’ are heated and ongoing, the barrister said the institution’s decision to go beyond the EqA’s protected characteristic of gender reassignment in favour of protecting a wider group of people under the umbrella term of “trans” posed “considerable legal risk”.
By way of example, Ms Reindorf cited the issue of recruitment. Although s.159 EqA “permits positive action in recruitment and promotion to rectify under-representation”, this was “only in respect of those with an actual protected characteristic”.
There would therefore be “a significant danger of committing unlawful discrimination against other job applicants if positive action were to be taken to increase the representation of trans people where they do not fall within the scope of the protected characteristic of gender reassignment,” she said.
In this context, the commitment adopted in KCL’s ‘Trans Matters Guidance’ to permit trans people to use facilities on a self-ID basis, placed the institution “in considerable legal jeopardy”.
One particularly concerning legal consequence outlined by Ms Reindorf is that “it may undermine KCL’s satisfaction of its safeguarding duties under the Children Act 1989 and the Safeguarding Vulnerable Groups Act 2006, since it allows an ill-defined, self-identified subset of male people to use spaces and services which have been designated as single-sex in order to protect women from sexual violence and harassment perpetrated overwhelmingly by men”.
Perhaps unsurprisingly, the barrister goes on to say: “The requirement [for KCL staff] to demonstrate allegiance to the EDI ambitions as a criterion for advancement places those with gender critical beliefs at a particular disadvantage when compared to others.”
“I think it is strongly arguable,” she adds, “that KCL’s approach to EDI in respect of sex and gender conflicts with and/or actively contradicts the law in certain key respects, and that it is partisan and ideological in nature.”
In one particularly cutting passage, the barrister remarks: “KCL may well be able to show that improving EDI generally is a legitimate aim, but it would seem difficult to argue that an appropriate or reasonably necessary way to achieve that aim is to require applicants to demonstrate commitment to a model of EDI which contradicts the law and asks them to engage in activities which conflict with their protected beliefs.”
How could a prestigious university such as KCL get the law in this area so badly wrong?
“Many of the errors and misstatements” of law contained within KCL’s staff-facing documentation are, Ms Reindorf says, attributable to the fact they “have their genesis” in materials produced by Stonewall and Athena Swan, both of which “promote the gender identity belief”.
Helen Joyce, Director of Advocacy at Sex Matters, said: “The damning conclusions of this legal opinion mean that King’s College London must urgently review its promotion and hiring policies.
“Any university that imposes policies that run counter to academic freedom is failing in its core mission, and likely to be penalised by the Office for Students under new laws coming into force in August,” she added.
Toby Young, General Secretary of the Free Speech Union, said: “At the Free Speech Union, we are constantly having to remind universities that their understanding of equality law is based on poor advice from activist organisations and the Equality Act does not, in fact, impose a legal obligation on them to enforce gender identity ideology or critical race theory.
“When this first started happening, I gave organisations like Stonewall the benefit of the doubt, assuming that the lawyers they employed just weren’t very good. But I now suspect that they are deliberately misrepresenting equality law in an effort to persuade universities – and not just universities – that any departure from their ideological agenda is unlawful.
“The truth is, the law just isn’t as woke as they’d like it to be.”
In the wake of this bombshell legal opinion, Sex Matters is calling on KCL to commit to an immediate and full review of its hiring and promotion criteria as well as its wider EDI policies in order to bring these into line with the law, and to commit to ending unlawful discrimination against staff with gender-critical views.
Although this legal opinion relates specifically to KCL, the FSU has seen very similar policies in operation at many other higher education institutions. We therefore wholly endorse Sex Matters’ call for all higher-education institutions to leave the Stonewall and Advance HE Athena Swan schemes, which promote HR, hiring and promotion policies that constitute unlawful belief discrimination and are inimical to academic freedom, and are therefore inimical to the very purpose of universities.
