This week should have been a wake up call for universities here in UK.
The Office for Students (OfS) has issued a significant fine of £585,000 to the University of Sussex, citing failures in its governance and breaches of its duties related to freedom of speech. This decision stems partly from the university’s handling of events surrounding Professor Kathleen Stock’s views on gender identity.
Legal Context:
The OfS’s concerns relate to compliance with Section 43 of the Education (No. 2) Act 1986 (duty relating to freedom of speech) and Article 10 of the European Convention on Human Rights (the right to freedom of expression).
Here’s a summary of the key points in its findings :
1. The OfS concluded that the University of Sussex’s “Trans and Non-Binary Equality Policy Statement” had a “chilling effect” on free speech, potentially leading staff and students to self-censor.
The regulator found that the university failed to uphold the principles of freedom of speech and academic freedom. Additionally, the OfS identified deficiencies in the university’s decision-making processes.
Key Policy Concerns:
The OfS identified four key elements within the University of Sussex’s “Trans and Non-Binary Equality Policy Statement” that led to their ruling:
1. ” Positive Representation Statement”:
This involved a requirement for “any materials within relevant courses and modules [to] positively represent trans people and trans lives.” The OfS was concerned that this could restrict academic discussions and limit the exploration of diverse viewpoints.
2. ”Stereotyping Statement”:
This statement said that “the curriculum shall not rely on or reinforce stereotypical assumptions about trans people.” . The OfS worried that this could create an environment where legitimate academic inquiry into complex social issues might be stifled.
3. “Transphobic Propaganda Statement”:
This statement said that “transphobic propaganda … will not be tolerated.” The OfS found that the term “transphobic propaganda” was too vague, and that it could be used to shut down lawful speech.
4. ”Disciplinary Statements”:This related to statements that said “transphobic abuse, harassment or bullying (name-calling/derogatory jokes, unacceptable or unwanted behaviour, intrusive questions) are serious disciplinary offences for staff and students and will be dealt with under the appropriate University procedures.” The OfS had concerns that those statements could be used to restrict lawful speech. The OfS stated that these caused a situation where academics felt unable to teach certain topics.
The University Response
The University of Sussex has indicated that it plans to legally challenge the OfS’s decision, disputing the findings and accusing the regulator of “politically motivated” actions.
Why this issue is important outside Universities?
I think this has wider resonance than just universities. It speaks to a wider culture in organisations whether public, third sector or even corporates where “creating an inclusive culture” became more important than statutory compliance.
Whilst the OfS focused on academic freedom and freedom of speech, as a an Equality law specialist I look at the policy wording in horror regarding compliance with Equality Act.
For example, the policy (or its application) could well amount to unlawful harassment or discrimination against staff or students who hold alternative religious or philosophical gender critical beliefs.
Plus, as a public body creating such a disproportionately generous policy to only one of the nine protected characteristics is arguably a breach of the university (as a public body)’s Public Sector Equality Duty to “(1)… have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b)advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”
My Advice
Simply, statutory compliance has to be first and foremost in your thinking, whether about diversity, equity or inclusion. Make sure those you entrust to policy writing have an in-depth, up to date and neutral understanding of the relevant law. I understand that the relevant policy was an adoption of a template presumably from a third party. So, if correct, did the university sufficient due diligence on the authors to know if it was legally correct, and that the authors took professional responsibility for that?
You know, basic regulatory and risk management stuff. Its not rocket science.