Most people have more interesting things to do with their time than read workplace policies. That is as it should be. Policies should be neither exciting nor surprising; they should merely describe employees¡¯ legal rights and obligations accurately and clearly.

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

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

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

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

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

By the 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 the Equality Act. Hence, contrary to popular mythology, it is incontrovertible that the 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¡± another person¡¯s identity. Quite apart from the contraventions of the Act that could ensue from such a requirement, the UK does not have laws against wrongthink.

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

It follows that trans people do not have a legal right to choose single-sex facilities matching their 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 the law to promote the 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 the Public Sector Equality Duty, which, in essence, requires them to think carefully about how to strike those balances. It ought to be obvious that stacking one side of the scale will not satisfy that duty. Going beyond the law can easily turn into stepping outside the 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 the observation in the judgment that some of the academic witnesses failed to meet ¡°a certain basic level of rigour¡± in their evidence about the orchestrated discrimination that led Phoenix to resign. Yet many universities retained their questionable trans inclusion policies regardless.

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It may have taken the 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 the fact that Sussex has now ?a legal challenge against the OfS: the potential of these faulty policies to breach the Equality Act will be unaffected by the outcome of that case, whichever way it goes.

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

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