More UK universities will have to implement policies that restrict the facilities trans people can use as they ¡°can¡¯t pick and choose what laws to follow¡± after a Supreme Court ruling that?has ¡°shifted the role¡± of institutions, according to an equality expert.

The court¡¯s decision earlier this year that the words ¡°woman¡± and ¡°sex¡± in the Equality Act refer to a biological woman and biological sex has?prompted universities to review their trans inclusion policies.

It means that a trans woman ¡°should not be permitted to use the women¡¯s facilities¡±, according to interim guidance issued by the Equality and Human Rights Commission (EHRC).

But universities that have attempted to enforce this ruling have faced a backlash from staff and students.

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The University of Warwick last month was accused of a ¡°knee-jerk reaction¡± after a leaked copy of its draft trans inclusion policy outlined a plan that would have prevented?trans staff and students from using the toilets of the?gender with which they identify.

David Bass, director of Equality, Diversity and Inclusion (EDI) at Advance HE, told?ÌÇÐÄVlog?that more universities will follow suit, as ¡°institutions have to follow the law¡± and cannot ¡°pick and choose which laws to follow¡±.

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¡°Higher education institutions will follow the law. We will see more institutions issuing guidance as they work through their policies and processes as they undertake engagement. We have a clear understanding of what this judgement means in regards to access to toilets and facilities, so we will see institutions issuing more guidance,¡± he said.

Tensions will persist at universities as these policies are rolled out, Bass added, saying that ¡°significant and strong disagreements will continue to play out¡±.

But Bass said that the ruling has a wider implication than just trans equality issues and represents a shifting role?for universities.

¡°Universities have always been sites of activism, and I think it¡¯s the difference between being a space where activism occurs, versus being an activist institution. It¡¯s inappropriate for a university to be an activist institution, but it¡¯s entirely appropriate for an institution to be a space where activism happens under academic freedom,¡± Bass said.

The approach also marks a shift for Advance HE, whose previous guidance stated that ¡°trans people should be allowed to use single-sex toilets and changing facilities appropriate to their self-identified gender¡± and it is ¡°not acceptable to restrict a trans person to using disabled toilets or gender-neutral facilities¡±.

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The membership body has also faced criticism for its role in the?record fine issued to the University of Sussex by the Office for Students?(OfS) earlier this year.

Sussex, the OfS found in a long-awaited investigation, failed to meet its academic freedom obligations, following protests calling for the dismissal of gender-critical professor Kathleen Stock. The university had based one of its equality statements at the centre of the case?on a policy template originally created by the Equality Challenge Unit?¨C later merged into Advance HE.

These documents are currently being reviewed in light of the latest developments and Bass said?while some parts of the advice have already been removed as they are no longer relevant, the body had taken the decision to keep as much of the guidance up as possible so institutions can ¡°think carefully about...how they engage with compassion and empathy¡±.

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¡°We¡¯ll be updating and undertaking a more significant project next year to work with the sector on writing new guidance on trans inclusion that accounts for the updated legal context. But that needs sector engagement, it means working with our members and working with different stakeholder groups.

¡°My expectation is that we won¡¯t be able to put something new on our website in that space for nine to 12 months, which is why we took the decision, not to just fully pull our current trans guidance, but to leave it partially up.¡±

Legal experts have stressed?that any policies introduced by universities need to remain ¡°proportionate¡± to meet the ¡°balancing test¡± and if, for example, a toilet policy meant that a trans person was required to use a mixed gender toilet which was far away, their disadvantage and detriment would need to be considered.

Bass said the significance of the Supreme Court ruling was yet to be realised, and would only become clear as new policies take shape. While ¡°it¡¯s a significant change in our understanding of the equality act¡±, he added it is ¡°hard to speculate on how significant that change will be in practice once [universities have] updated their policies and built new ways of working¡±.

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juliette.rowsell@timeshighereducation.com