So the first thing I have to say about this is: I was wrong, badly wrong. Tom Martin was a student at LSE last year, and since then the Equality Act 2010 has come into force. s.94(2) says that ‘anything done in connection with the content of the curriculum’ is exempt from the discrimination and harassment provisions in further and higher education. The explanatory notes illustrate this in the following way:
A college course includes a module on feminism. This would not be discrimination against a male student.
I thought this was absurd, because who could possibly think it ever would be discrimination to require a man to take a feminism course? Well, so now I know the answer to that. (And I’m very, very confident that he would have no chance if he were a student now that the Equality Act has replaced the previous legislation.)
The second thing I have to say is: I’m really, really curious to know what his claim is based on. The Evening Standard says it’s ‘breach of the Gender Equality Duty Act (by which I assume they mean the Equality Act 2006) but the gender equality duty doesn’t directly create anything an individual can sue for damages under. Elsewhere the Sex Discrimination Act 1975 is mentioned, but it’s not clear whether he’s arguing it’s direct discrimination, indirect discrimination or harassment. (Apparently among LSE’s arguments in response is that if there was any discrimination, it was justified: this suggests there’s an indirect discrimination claim in there somewhere, because direct discrimination can’t be justified in law.)
The third thing I have to say is that I’m not sure the new s.94(2) is a good thing. This is because it not only protects course content (and, remember, ‘anything done in connection with’ course content) from being found to have resulted in unlawful harassment, it protects it from being found to have resulted in unlawful detriment or disadvantage. It seems entirely possible that certain choices of course content could put a disabled person at a substantial disadvantage, but s.94(2) means that would be perfectly lawful. (At least, that’s how it seems to me. The people responsible think that the distinction between content of the curriculum and delivery of the curriculum will take care of this concern, but I’m not convinced.)