OfS softens free speech approach as complaints scheme nears

The English regulator has amended its freedom of speech guidance after it lost a landmark High Court case brought by the University of Sussex, weeks before a new complaints scheme is set to launch.

The Office for Students (OfS) said it had made “minor updates” to the regulatory guidance and amendments to several examples in the guidance following the judge’s ruling, which found the regulator had acted beyond its powers in fining the university for failing to uphold free speech.  

The changes also reflect interactions between free speech laws and the European Convention on Human Rights, the regulator said. 

One example that was updated focuses on a hypothetical student handbook on misgendering, which states that “misgendering is never acceptable”.

The regulator said a blanket ban on misgendering is likely to breach freedom of speech rules, but notes that there may be some circumstances in which the use of dispreferred pronouns may be restricted under convention rights. An example given is “permitting repeated and deliberate misgendering directed by a teacher to a particular student”. 

Writing on LinkedIn, James Murray, a lawyer specialising in academic freedom, said that the references to the convention are a “noteworthy development”.

“The earlier guidance effectively divided expression into lawful speech, which was protected, and unlawful speech, which was not. 

“The revised guidance creates a third category: expression that may not necessarily be unlawful but which is nevertheless excluded from Convention protection because it seeks to undermine the rights and freedoms protected by the Convention.

“For providers, this offers an additional legal basis for refusing to facilitate certain forms of extreme expression while remaining consistent with their free speech duties.”

Another updated example focuses on a complaint about a professor’s speech at a protest, which is “clearly a lawful expression of political views”. 

In the hypothetical case, students are upset by the views and file a complaint against the professor, leading to a “lengthy” investigation case, which results in the professor being cleared.

The OfS said the university would have breached its duties by not having an “adequate triage process” to ensure the complaint was dismissed quickly.  

“Since the Sussex judgment, we have been carefully reflecting on our approach to protecting freedom of speech in higher education,” said Arif Ahmed, director for freedom of speech and academic freedom at the OfS. 

“In recent months I have met with many vice-chancellors and other senior staff to discuss freedom of speech issues at their institutions,” he continued. 

“In many cases this work has helped to resolve a number of potentially complex free speech issues without the need for further regulatory action. I continue to welcome these conversations.”

Nonetheless, the regulator’s complaints scheme is set to launch in September and will be open to university staff, applicants for academic posts, visiting speakers and non-student members.

The regulator confirmed that the scheme will not be retrospective and will not review complaints concerning actions that took place before 1 September 2026.

It said complaints must be submitted within 12 months “unless there are good reasons why it was not” and that it would not review anonymous claims. Whereas a previous iteration of the scheme gave providers 30 days to resolve complaints before they can be passed to the OfS, this has now been lengthened to 90 days. 

Although there have been concerns about the length of time it may take the OfS to investigate claims – the OfS investigation into the Kathleen Stock case went on for over three years – the regulator said it would make a decision “as soon as reasonably practicable”, and expects to complete most complaints within six months.

Following investigations into complaints lodged, the OfS may make recommendations to the university involved, which could include telling it to pay compensation to complainants or reinstate a speaker or research project that had been cancelled. If a free speech complaint is justified, higher education institutions could also be required to cover the cost to the regulator of investigating the complaint. The OfS said it expected to publish details of its findings.

helen.packer@timeshighereducation.com