Policy vs Precedent: Is Folkestone & Hythe’s Equality Framework Fit for Purpose

Recently, the Equality Act returned to national headlines after a landmark Supreme Court judgment confirmed—definitively—that “sex” in UK law means biological sex. Tomorrow evening, Folkestone & Hythe District Council’s Equality & Diversity Policy 2025-29 is due to go before its Overview and Scrutiny Committee. On the surface, the policy appears inclusive and legally sound—but when tested against recent judicial rulings, a sharper question emerges: does it comply with the law as courts now interpret it?

“The Policy Itself Remains Largely Unchanged”—But the Legal Climate Has Shifted

The Council acknowledges:

“The policy itself remains largely unchanged as there have been no principal changes in legislation since 2010.” — Report C/24/93, Section 2.4

Yet recent court rulings have reshaped how public authorities must interpret and apply the Equality Act 2010 (EA 2010). The law itself may not have changed, but the understanding of it has—and that matters.

Supreme Court: “‘Sex’ Means Biological Sex”

In For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16, the UK’s highest court ruled:

“the words “sex”, “woman” and “man” in sections 11 and 212(1) mean (and were always intended to mean) biological sex, biological woman and biological man… This conclusion does not remove or diminish the important protections available under the EA 2010 for trans people with a GRC as we have explained.” – Para 264

So to be clear, the Supreme Court says:

The statutory definition of ‘woman’ in the EA 2010 does not include a trans woman with a GRC.

And:

The effect of section 9(1) [of the Gender Recognition Act] can be displaced… by the terms and context of a subsequent enactment.

The Court rejected any selective interpretation of sex in different contexts:

“The presumption that a word has the same meaning throughout the Act… is consistent with this principle.” — para 13

For Folkestone & Hythe, which currently pledges to positively support Gender, Transgender and Sexual Orientation without distinguishing between legal and biological sex, the implications are serious. Legal protections for women under “sex” and for trans people under “gender reassignment” must be separately articulated and lawfully balanced.

Taylor v Jaguar Land Rover: Expanding Gender Reassignment

In Taylor v Jaguar Land Rover Ltd (2020), the Employment Tribunal held that non-binary and genderfluid people are protected under the Equality Act’s “gender reassignment” provision. This was hailed as a milestone ruling.

Folkestone & Hythe’s policy makes no explicit mention of non-binary or genderfluid identities. The absence of such reference now places the Council at risk of omission under case law.

Forstater v CGD Europe: Belief Is Protected Too

In Forstater v Centre for Global Development Europe (2021), the Employment Appeal Tribunal found that gender-critical beliefs—such as the view that sex is immutable and defined by biology—are protected under the Equality Act as “philosophical beliefs”.

This presents a second balancing test for the Council. The Supreme Court has now confirmed that such beliefs align with the statutory meaning of sex. If the Council fails to acknowledge or protect staff and service users holding these beliefs—so long as they express them lawfully—it could be vulnerable to claims of belief discrimination.

University of Sussex Case: Equality Policies Must Not Chill Free Speech

In 2025, the Office for Students fined the University of Sussex £585,000 after finding that its equality policies had created “confusion over the limits of lawful free speech,” particularly on issues of sex and gender identity. This case underscored the risks of failing to provide clear guidance and lawful boundaries.

Folkestone & Hythe’s policy includes robust anti-discrimination language:

“The council will not tolerate any form of discrimination and will continue to seek to eradicate racism, Islamophobia, sexual orientation discrimination, Anti-Semitism and hate crime across the district through our work with our partners, developing initiatives that are actively inclusive and anti-racist. .”
— Section 9, Wider Role in the Community

But it does not address how this intersects with freedom of speech or belief. There are no provisions for lawful dissent, reasonable accommodation, or respectful disagreement—key legal safeguards flagged in Forstater and University of Sussex.

Equality Objectives: Worthy Words Without Legal Precision?

The Council’s objectives include:

“Ensure all of our services are accessible to people with disabilities; consideration to be given to screen reader compatibility, hearing loop systems.”
— Objective 8, Appendix 1

And:

“Working with voluntary organisations to bring people together, celebrate our diversity and enable residents to play an active role in their communities.”
— Objective 3, Appendix 1

But there are no metrics, no delivery mechanisms, and—critically—no reference to the specific statutory duties now clarified in the Supreme Court ruling. Without clear operational alignment to the definitions of “sex” and “gender reassignment”, the policy’s aims risk being too vague to enforce, and too legally porous to protect.

Equality Impact Assessment: No Stage 2 Needed?

The accompanying Equality Impact Assessment (EIA) declares:

“No – The revised Equality and Diversity Policy is designed to have a positive impact on those who access council services and those who work for the council… therefore no Stage 2 assessment is required.” — Appendix 3, p. 6

However, the EIA admits no new equalities data or stakeholder engagement was used in the drafting. This raises questions about the Council’s ability to show “due regard” under the Public Sector Equality Duty.

The Council’s own policy states:

“The equality duty must be integral to the council’s activities and has to be carried out seriously, rigorously and with an open mind – it is not just a question of ticking boxes. ” — Section 1, Policy

Yet the legal reality may suggest just that: boxes ticked, but questions left unanswered.

Conclusion: Precision Is No Longer Optional

The courts have spoken. “Sex” means biological sex. “Gender reassignment” is a separate category. Gender-critical beliefs are protected. Non-binary identities are included. Freedom of speech must not be chilled. These aren’t political arguments anymore—they’re legal facts.

As the Supreme Court concluded:

“Citizens… should be able to rely upon what they read in an Act of Parliament.”
— para 9

If Folkestone & Hythe District Council is serious about equality, dignity, and legal compliance, its next policy revision must move beyond broad aspirations—it must demonstrate legal precision, statutory clarity, and clear alignment with established case law for everyone who works for the Council or relies on its services. The responsibility now rests with the Overview & Scrutiny Committee to exercise rigorous and informed oversight: to examine, question, and challenge the Council’s decisions and practices on behalf of all those with protected characteristics. As a cornerstone of local democracy, scrutiny must go beyond well-meaning words—it must deliver genuine accountability, transparency, and lawful governance. Let’s hope that tomorrow night, all residents receive exactly that.

The content of this article is provided for general informational purposes only and does not constitute legal advice. No lawyer-client relationship is created by reading this material. While every effort has been made to ensure accuracy, the information may not reflect the most current legal developments. Any reliance on the content is strictly at the reader’s own risk. For legal advice tailored to your circumstances, please consult a qualified solicitor or legal professional.

The Shepway Vox Team

Dissent is NOT a Crime