After being fined PS585,000 for failing to respect freedom of expression, the University of Sussex accused the Office for Students of mounting an ‘unreasonable and vindictive campaign’ against them.
In 2021, after Kathleen Stock resigned from her position as a philosophy professor following allegations of transphobia, the OfS began an investigation into the case.
Professor Stock, who denies being transphobic and has faced calls for her dismissal on campus, was the target of protests after she published a controversial book in which she questioned whether gender identity is more “socially important” than biological sexuality.
OfS stated that the university’s statement of policy on transgender and non-binary people, which includes a requirement to “positively represent trans people”, could cause staff and students to refrain from voicing their opposing opinions.
The fine, which is the highest ever issued to an university, is seen as a way to control the expression of legal opinions.
The University of Sussex has, however, accused the regulator of pursuing an “extremely libertarian position on free speech” and of engaging in a “vindictive, unreasonable campaign”. Vice-chancellor Sasha Roseneil said the university would challenge the OfS decision in court, saying that the ruling leaves institutions “powerless” to stop abusive, bullying, and harassing speech.
The university claimed that the regulator failed to respond in person to its requests for engagement with its staff, and that the investigation was a “trawl through documents”.
The fine will “cause havoc in the UK higher education industry”, she added.
Arif Ahmed said that the OfS Director for Freedom of Speech and Academic Freedom, had conducted a thorough investigation before deciding to fine the University.
He said that it was found that staff were afraid of disciplinary action because of the policy and that Professor Stock changed her teaching style as a consequence.
Dr Ahmed said that the OfS “was concerned that a chilling affect may have caused more students and professors to self-censor”.
The OfS determined that the Sussex University’s Trans and Non-Binary Equality Policy statement failed to adhere to the principles of academic freedom and freedom of expression set forth in the OfS regulatory framework.
The institution also failed to implement management and governance measures that were adequate and effective to ensure it was operating in accordance with its delegation arrangements, as set out in the governing documents of the institution, including the scheme of delegation.
Vivienne Stern is the chief executive of Universities UK which represents 141 universities. She was critical of this ruling but acknowledged that it was “absolutely necessary” for universities to uphold academic freedom and freedom of speech, as they are legally required to do.
This judgment raises questions about how universities can discharge their freedom of expression and academic freedom duties in practice alongside other important legal requirements” – Vivienne stern, Universities UK
She added that the judgment raised concerns about how universities could, in reality, fulfill their freedom of expression and academic freedom obligations alongside other important legal duties, such as those imposed by legislation to prevent hate speech and harassment.
We will write to the OfS and ask for clarification, as it appears that the judgement finds that a university’s policies to prevent “abusive” material or speech are a failure to protect academic freedom and freedom of speech.
Bridget Phillipson, Education Secretary, said that academic freedom and free speech must be respected in universities.
You must be ready to hear opposing opinions, and to be confronted with uncomfortable truths if you attend university.
We are strengthening the powers of the OfS on freedom speech to ensure that students and academics do not feel the chilling effects demonstrated in this case.
Legal duties
The regulator stated that the Trans and Non-Binary Equality Policy statement of the university was examined in context with existing legal obligations on freedom of expression, as well as European Convention on Human Rights. The OfS’s report found that several aspects of the policy were of particular concern.
The requirements included that course materials “positively portray trans people and their lives” as well as a statement that “transphobic propagandist… [would not] be tolerated”.
The regulator also highlighted that “transphobic abuse”, a serious offence, would be committed by staff and students.
Stock caught the attention of many trans activists when, in 2018, she published an article online in which she questioned the proposed policy by the government to allow transgender individuals to self-identify legally as their preferred gender.
She said she was not against transgender women, or the Gender Recognition Act 2004 (the law that allows people to legally be classified as the opposite gender to which they were born). She said that some sort of “gatekeeping”, or a way to monitor the process, was needed.
Stock said previously that “you should have a gender dysphoria and a diagnosis, as well as a commitment.”
Policies that are ‘dim-witted’ and claustrophobic
She also stated that society should have the freedom to explore the possible effects of prioritizing “gender identity” above biological sex, especially in regards to the costs for women’s rights and health of children who wish to change their gender.
Stock, who is a contributor editor at UnHerd and wrote a new article, described the policies of many universities on trans issues as being “dim-witted” and “claustrophobic.”
She said that although the PS585,000 “appear to be only half the amount first mentioned by university regulator”, this “didn’t seem to cheer up the vice chancellor much”. The OfS stated that the fine was discounted because it was the first one of its kind.
Stock resigned in late 2021, after police informed her that the situation had escalated to the point she may need security guards at the campus.
The former Conservative government passed the Higher Education (Freedom of Speech) Act in 2023, which aims to strengthen laws relating to freedom of speech, and many of these laws would apply here.
In January, Labour announced that it would not implement the Act fully, arguing that its provisions were already robust enough and that OfS’s focus would be redirected to freedom of expression issues. Many university groups, such as Universities UK and the Russell Group, welcomed this.
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