The University of Sussex has accused higher education regulator the Office for Students of mounting a ‘vindictive and unreasonable campaign’ against it after it was fined £585,000 for a failure to uphold freedom of speech.

The OfS, which gained the power to issue fines in freedom of speech cases in January, began investigating the case of philosophy professor Kathleen Stock in 2021 after she resigned following accusations of transphobia for her views on sex and gender issues.

Prof Stock, who rejects accusations that she is transphobic, faced protests calling for her sacking on the university campus after she published a book questioning whether gender identity was more “socially significant” than biological sex.

The OfS said the university’s policy statement on trans and non-binary equality, including a requirement to “positively represent trans people”, could lead to staff and students preventing themselves from voicing opposing views.

The fine is the largest issued to a university and is likely to be seen as an intention to hold the line over the expression of legal views.

The University of Sussex, however, has accused the regulator of pursuing a “vindictive and unreasonable campaign” and of entrenching an “extreme libertarian free speech position”. It planned to mount a legal challenge to the OfS ruling, said vice-chancellor Prof Sasha Roseneil, claiming the ruling would leave institutions “powerless to prevent abusive, bullying and harassing speech”.

The university said the regulator had failed to respond to its requests to engage with its staff in person, alleging that the investigation consisted of a “trawl of documents”.

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She added the fine would “cause havoc across the UK higher education sector”.

Arif Ahmed, the OfS director for freedom of speech and academic freedom, said the decision to fine the university had followed a thorough investigation.

It found, he said, that the policy had meant staff feared disciplinary action and that Prof Stock had changed the way she taught her course as a result.

Dr Ahmed added that the OfS was “concerned that a chilling effect may have caused many more students and academics at the university to self-censor”.

The OfS found that Sussex university’s Trans and Non-Binary Equality Policy Statement failed to uphold the freedom of speech and academic freedom public interest governance principles set out in the OfS’s regulatory framework.

In addition, the institution failed to have adequate and effective management and governance arrangements in place to ensure that it operated in accordance with the delegation arrangements set out in its governing documents, including its scheme of delegation.

Vivienne Stern, chief executive of Universities UK, which represents 141 institutions, was critical of the ruling, while acknowledging it was “absolutely essential that universities uphold freedom of speech and academic freedom”, which they were legally bound to do.

This judgement raises concerns about how universities can, in practice, discharge freedom of speech and academic freedom duties alongside other important legal obligations” – Vivienne Stern, Universities UK

However, she added: “This judgment raises concerns about how universities can, in practice, discharge freedom of speech and academic freedom duties alongside other important legal obligations, for example, under legislation to prevent harassment and hate speech.

“We will therefore be writing to the OfS to ask for clarity as the judgment appears to find that it is a ‘failure to uphold freedom of speech and academic freedom’ if a university has policies to prevent ‘abusive, bullying and harassing’ material or speech.”

Education secretary Bridget Phillipson said free speech and academic freedom must be upheld in universities.
“If you go to university, you must be prepared to have your views challenged, hear contrary opinions and be exposed to uncomfortable truths.

“We are giving the OfS stronger powers on freedom of speech so students and academics are not muzzled by the chilling effect demonstrated in this case.”

Legal duties

The regulator said the university’s Trans and Non-Binary Equality Policy Statement was looked at in the context of existing legal duties on freedom of speech, as well as the European Convention on Human Rights. In its report, the OfS found several elements of the policy to be of particular concern.

These included a requirement for course materials to “positively represent trans people and trans lives” and an assertion that “transphobic propaganda… [would] not be tolerated”.

Another part of the policy highlighted by the regulator said “transphobic abuse” would be a serious disciplinary offence for staff and students.

Stock attracted the attention of trans activists in 2018 when she decided to question in an online article the government’s proposed policy to allow transgender people to legally self-identify as their chosen gender.

She has said that she is not opposed to transgender women or the Gender Recognition Act 2004, the law which allows people to be legally classified as the opposite sex to the one they were born. However, she said some form of “gatekeeping” in this process was required.

“You should have a diagnosis and demonstrate commitment, and there should be gender dysphoria,” Stock has previously said.

‘Dim-witted and claustrophobic’ policies

She has also said that society should be free to examine the effects that prioritising the concept of “gender identity” over biological sex may have, particularly in terms of the costs to the rights of women and the health of children who say they wish to change gender.

In a new article for UnHerd, for which she is a contributing editor, Stock described many universities’ policies on trans issues as “dim-witted and claustrophobic.”

She added that the £585,000 was “apparently only half of the sum first mentioned by the university regulator” but this hadn’t seemed “to have cheered the vice chancellor up much”. The OfS said the fine was discounted as it was the first of its type.

Stock resigned from the university in late 2021 after being informed by police that matters had reached the point where she might need to have security guards on campus.

The previous, Conservative, government passed the Higher Education (Freedom of Speech) Act 2023 to toughen laws around freedom of expression, many of which would apply in this case.

However, in January, Labour said it would not fully implement the Act, arguing that the law was already sufficiently robust and that the OfS would be refocused to take on freedom of speech issues. This was welcomed by many university bodies such as the Russell Group and Universities UK.

 

 

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