A recent article for Times Higher Education reports what it calls a “climate of fear and uncertainty” for trans academics in the wake of two high-profile developments: the Supreme Court’s ruling that, for Equality Act purposes, “sex” means biological sex rather than gender identity, and – more directly pertinent to questions of academic freedom and campus speech – the Office for Students’ record £585,000 fine against the University of Sussex over its Trans and Non-Binary Equality Policy Statement. It is this decision that THE’s interviewees treat as a dangerous signal to the sector.
“The message that the censure of Sussex by the OfS sends to universities is they should allow transphobic abuse, they should allow stereotypical portrayals and they should allow negative portrayals,” said Kit Heyam, a “historian and trans awareness trainer”. “That is a hostile work environment.”
For Chris Parkes, a senior lecturer in history education at King’s College London, the significance of the penalty lay less in its size than in what he saw as its wider implication. The fine, he said, “enhanced this utterly false notion that there is a zero-sum game between treating trans people with respect and having freedom of speech or academic freedom”.
Others warned that the chilling effect would not stop at Sussex. Natacha Kennedy, a lecturer in education at Goldsmiths, said that in the wake of the OfS action, “universities are going to be afraid to be trans inclusive”.
“Universities are scared because they don’t know where the line is. The potential fines are huge, so they’re going to err on the side of caution,” she said. “Gender-critical researchers talk about a chilling effect on their research, but [the OfS ruling] is having a very big chilling effect on universities.”
These are serious claims. But they also need to be tested against what the relevant public bodies have actually said – and, in Sussex’s case, against the OfS’s own published reasons for its decision. On that crucial point, THE largely reproduces the interpretation of interviewees with strong grievances, without setting it alongside the regulator’s rationale, or the basic legal structure that governs how universities must balance equality duties with freedom of speech and academic freedom.
On the face of the OfS decision, however, there is no need for any higher education provider to be “afraid to be trans inclusive”, because Sussex wasn’t fined for trying to protect trans students, nor for taking action against harassment.
The OfS’s concern, set out at length in its published decision, was that the university’s Trans and Non-Binary Equality Policy Statement “limited what staff could teach, and what staff and students could say, about sex and gender”, creating a “chilling effect” on lawful views.
THE’s article doesn’t mention the wider legal framework. But universities are not operating solely under the Equality Act 2010’s duties to prevent unlawful discrimination and harassment. Sussex also had a duty under the Education (No. 2) Act 1986 to take “such steps as are reasonably practicable” to secure “freedom of speech within the law”, alongside Article 10 ECHR, under which disproportionate interferences with freedom of expression are unlawful.
In particular, the OfS found that four elements of the policy statement placed constraints on freedom of speech and academic freedom: (a) a requirement that course materials “positively represent trans people and trans lives”; (b) a statement that the curriculum shall not “rely on or reinforce stereotypical assumptions about trans people”; (c) a statement that “transphobic propaganda… will not be tolerated”; and (d) a disciplinary statement on “transphobic abuse, harassment or bullying”. The OfS concluded these were capable of restricting lawful speech, including in course materials and the curriculum, and that they created a “chilling effect” because staff and students “may have felt unable” to express or discuss certain lawful views “for fear of breaching university policy and facing disciplinary action”. It adds that this chilling effect materialised in practice: Professor Kathleen Stock felt unable to teach certain topics as a result.
Far from licensing abuse, the OfS framed its intervention as a failure to strike a lawful balance: Sussex was entitled to pursue equality objectives, but not by adopting a governing policy that restricted lawful speech and academic freedom.
This is where much of the rhetoric quoted in THE goes astray. It is simply not the case that the law forces universities into a free-speech-absolutist “anything goes” position – as implied by Heyam’s claim that the OfS’s censure sends a message that universities “should allow transphobic abuse”, or Parkes’s insistence that the decision “enhanced this utterly false notion that there is a zero-sum game between treating trans people with respect and having freedom of speech or academic freedom”.
Rather than preventing institutions from protecting trans students and staff, the law simply requires that protection be delivered through measured, targeted, evidence-led restrictions: rules aimed at conduct (harassment, threats, targeted bullying), limitations on time/place/manner, and case-by-case decisions that genuinely weigh context and necessity. In other words, Sussex could have had a policy that enabled intervention where speech crossed into unlawful harassment, or where specific risks were evidenced – it just couldn’t do so by declaring whole categories of lawful viewpoint off-limits in advance. A policy that declares certain viewpoints impermissible by definition, by labelling them “propaganda” or mandating “positive representation”, cannot, by its nature, perform the nuanced, fact-sensitive balancing that Article 10 requires.
Seen in that light, the OfS decision doesn’t create an impossible conflict between protecting trans students and upholding academic freedom, such that universities should be, as Natacha Kennedy puts it, “afraid to be trans inclusive”. It simply restates a basic legal principle: universities must address harassment when it occurs, but they may not pre-emptively suppress lawful academic disagreement in the name of safety.
This article forms part of the Committee for Academic Freedom’s monitoring of developments in UK higher education. To receive monthly updates and analysis on cases affecting academic freedom, click the link and subscribe to our newsletter.