Last week saw yet another controversy about transphobia and academia, this time at the University of Oxford. Some of the protesting students claimed that talks by Helen Joyce and Michael Biggs violated the University’s own equality policies. Surprisingly, they might have a point. Oxford’s definition of “transphobia” is very broad, perhaps even to the point of conflicting with several laws.
This latest kerfuffle followed a by now well-known formula: talks are scheduled with gender critical speakers, outraged students protest and demand cancellations, administrators quiver in their boots, and the rest of us remind them of the need to protect academic freedom. However, this time, a few things were different; some encouraging, some disappointing.
When student societies and common rooms demanded that two separate talks by Helen Joyce and Michael Biggs be cancelled, the University stood its ground, insisting on the need for “views expressed to be tested through argument and debate”. Dame Helen Ghosh, master of Balliol College where Joyce gave her talk, told a student newspaper that “the College saw no grounds to refuse permission for the talk to go ahead”.
Those are the encouraging aspects of the story. The disappointing side comes from the arguments made by the students for why the speeches should not have gone ahead. Rather than simply offering the usual points about the emotional trauma, microaggressions, and life-threatening rhetoric espoused by gender critical speakers – although these were raised as well – the students complained that Oxford was violating its own policies regarding equality.
In response to Michael Biggs giving a talk at the sociology department (where he is an associate professor) the junior common room at St Catherine’s College passed a statement condemning the decision “to host an active transphobe”. (Their stance on passive transphobes remains unclear.) The statement added that Biggs’ views “infringes upon […] the University’s own official policy”.
This is not just hyperbole. Oxford’s definition of ‘transphobia’ is surprisingly broad – probably broad enough to encompass the opinions of Helen Joyce and Michael Biggs. The definition states that:
“[t]ransphobia is discrimination, harassment and bullying or hate crime experienced by trans people (or those associated with them) on the grounds of their gender identity and/or expression”.
The devil, as always, is in the detail. What constitutes ‘harassment’ or ‘bullying’? The definition goes on to provide illustrative examples:
– Making derogatory jokes;
– Unacceptable or unwanted behaviour
– Asking intrusive questions: “So what surgery have you had?”
– Deliberately ignoring someone’s preferred pronoun: “He/she/whatever …”, or failing to use “they” when asked to do so by someone who is non-binary;
– Speculating openly about their gender: “Is that a man or a woman?”
– Unlawfully disclosing their trans history: “Oh yes, he used to be a woman”
It is not hard to imagine how perfectly ordinary speech and beliefs about sex and gender could fall afoul of a definition that is so broad as to include the above examples. Moreover, Oxford specifically mentions that such behaviour “will be regarded extremely seriously and could be grounds for disciplinary action, which may include expulsion or dismissal”.
A policy which will lead to the firing or expulsion of people for using the wrong pronoun, speculating about someone’s gender, or merely “unwanted behaviour” is likely in conflict with several laws meant to protect free speech.
One is Article 10 of the Human Rights Act 1998, which explicitly protects the right to freedom of expression. This right “shall include the freedom to hold opinions and receive and impart information and ideas without interference by public authority”. Restricting the ability of staff, students, and speakers to discuss issues surrounding sex and gender is likely to violate this right.
Furthermore, the definition may be in conflict with the Equality Act 2010. Although this law protects against discrimination based on gender, including gender reassignment, it also protects other characteristics, such as religion and belief. In the past, employment tribunals have found that gender critical beliefs are protected under this act.
One might wonder why Oxford University should not be allowed to simply set its own rules regarding harassment and bullying. This is a fair concern, and to some extent a university can set its own policies on these issues, but there are limits.
Firstly, under the Education (No. 2) Act 1986, universities are required to take reasonably practicable steps to protect freedom of speech within the law for staff, students, and external speakers. It seems that not firing or expelling members of the university for their views is a “reasonably practicable step”.
Secondly, any institution held to be a “public authority” have additional legal obligations. Most British universities, including the University of Oxford, are considered public authorities in most of their proceedings. As such, they are required to act “reasonably” and “proportionately”. Prohibitive policies that go significantly beyond legal requirements could be challenged as “unreasonable” or “disproportionate”.
Finally, any public authority must uphold the Human Rights Act 1998. As such, the University of Oxford is mandated to respect and act in accordance with Article 10 of the Act, as covered above.
Even if Oxford’s transphobia definition is not in conflict with any UK law, it remains in conflict with the basic principles of academic freedom. Balliol College was right not to cancel Helen Joyce’s talk. If students find her or Biggs’ ideas repulsive, illogical, or just plain wrong, they should come along and reason with them, not call for their cancellation. We call on Oxford to restrict its definition of transphobia to cover only real, unlawful harassment, discrimination, and bullying.