What to do about the Equality Act

Among people of a conservative disposition, it’s long been accepted that the Equality Act needs to be repealed. This legislation, passed in 2010 in the dying days of Gordon Brown’s premiership, was designed to embed Labour’s egalitarian ideology into the fabric of the British state, yet none of Brown’s successors have done anything about it. In July, Rishi Sunak told a group of Conservative party members at a leadership hustings in West Sussex that he would ‘review’ it if he became prime minister, but don’t expect major surgery. The most we can hope for is a bit of light cosmetic work.

One thing about the Equality Act not widely understood is that it didn’t create much in the way of new law. Rather, it grouped together several laws that were already on the statute book, such as the Equal Pay Act 1970, and put them all in a single act of parliament. It’s doubtful the public has much appetite to repeal laws that in some cases have been around for more than 50 years. Indeed, the most recent British Social Attitudes survey found that support for equality laws is increasing: 73 per cent of people surveyed thought rights for lesbians, gay men and bisexuals ‘had not gone far enough’ or were ‘about right’, compared with 62 per cent in 2011.

True, the Equality Act did include a new legal duty for public authorities to reduce socioeconomic inequality, which one Labour cabinet member at the time described as ‘socialism in one clause’. But the provisions of the act were brought in at different times which gave David Cameron’s government the opportunity to kick that one into the long grass.

Another thing about this act that isn’t widely appreciated is that the legal duty it imposes on public authorities to promote equality – between different groups in possession of protected characteristics, not social classes – isn’t particularly onerous. But it has been made to seem so by left-wing activists, many of whom have a vested interest in exaggerating the compliance obligations, either because they’re employed as equity, diversity and inclusion officers in the public sector or because they’re paid to deliver unconscious bias training to public-sector employees.

One way of undoing some of the mischief the Equality Act has done would be for an eminent equalities barrister to clarify just how limited the public-sector equality duty is; a thinktank like Policy Exchange or the Legatum Institute should commission a piece of work along those lines.

As a free-speech campaigner, my main concern is over the way the act is invoked by student activists to no-platform people whose opinions they disagree with. For instance, a feminist law professor was disinvited from speaking at Essex University about ‘trans rights, imprisonment and the criminal justice system’ in 2019 on the grounds that expressing her view that trans women shouldn’t be admitted to women’s prisons would constitute unlawful harassment of trans students and staff. According to these activists, because the university had a duty under the Equality Act to eliminate unlawful harassment against people with protected characteristics – which they claimed included ‘gender identity’ – it shouldn’t allow this professor to darken its doors.

That argument was based on a misunderstanding of the act that originated with Stonewall, something Essex admitted last year. Indeed, the vice-chancellor apologised to the law professor, although he later made a second apology, this time to LGBT students at Essex, for having issued the original mea culpa just before Pride month, which made them feel ‘unsafe’.

Not only was that an over-interpretation of the public-sector equality duty, but the Equality Act could now be invoked to defend the right of the professor to speak at Essex, since the Employment Appeals Tribunal ruled earlier this year that traditional feminist views about preserving single sex spaces – known as ‘gender critical’ beliefs – are protected under the act. It is unlawful for a public authority, such as a university, to discriminate against a person because they hold those beliefs, just as it would be to discriminate against someone on the basis of their race, gender or religion.

Even though the Equality Act was never intended to shut down debate on campus, it is being widely misinterpreted in that way, so I think a small tweak to clarify what universities must do to comply with it should be made by way of an amendment to the Higher Education (Freedom of Speech) Bill. I’ll be urging the government to do that when the bill returns to the floor of the Lords next week, but I think any more wholesale reform of the act is politically impossible.