The OfS should appeal against the flawed Sussex free-speech ruling

At the heart of the High Court judgment in the University of Sussex’s case against the Office for Students is an Equality Act-shaped hole.

The court overturned the regulator’s finding that Sussex had failed to protect academic freedom and freedom of speech when it adopted a policy in 2018 banning so-called transphobic propaganda from its campus and pledging to discipline those committing “transphobic abuse”.

The OfS investigation had been sparked by the hounding of Kathleen Stock, who had been accused of hate by campus activists for speaking up about misrepresentations of the Equality Act. Employers, including universities, had taken to labelling ordinary speech about the two sexes as “transphobia”, and employees who expressed such heresies as “trans women are not women” were being subjected to career-destroying witch-hunts.

The Education (No. 2) Act 1986 requires higher education institutions to “take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers”. A large part of the judgment in favour of Sussex hinged on interpreting the terms “reasonably practicable” and “freedom of speech within the law”.

The OfS had concluded that the “reasonably practicable” thing for Sussex to do would have been not to adopt the “trans and non-binary equality” policy, which had been proposed by campus activists. The High Court ruled that although on its face the policy did threaten freedom of speech, Sussex had other high-level governance documents that a well-informed reader could assume would protect them.

Even as Stock was being driven out of Sussex, case law increasingly supported her contention that employers were misinterpreting the Equality Act. In 2019, I brought a case against my employer (a thinktank) for belief discrimination. The tribunal ruled that the belief that sex matters was “not worthy of respect in a democratic society” and was therefore not covered by the Equality Act’s protection against belief discrimination – but, in 2021, this judgment was overturned on appeal.

Since then, a series of cases have succeeded against employers who act in prejudiced ways towards employees with “gender-critical” views. By now it should be obvious that if Stock had brought a case of harassment and discrimination leading to constructive dismissal against Sussex, she would have won.

Such a case was never brought. Instead, the OfS sought to hold the university to account for its flawed policy, not merely for that policy’s impact on a single person. But when Sussex brought its challenge to the High Court, everyone involved seemed to forget how the Equality Act works to protect freedom of belief and speech.

The act, passed in 2010, defines civil harassment as engaging in unwanted conduct related to a protected characteristic that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. An employer is liable for harassment by its employees unless it can show that it took “all reasonable steps” to prevent it. This is why careful employers have legally sound equality policies, train staff on these policies, and robustly investigate bullying and harassment. The Equality Act also protects employees against policies that restrict the expression of a specific lawful belief, which would constitute belief discrimination.

So it’s actually pretty simple to decide what it is reasonably practicable for universities to do to protect free speech. They should set policies in line with the Equality Act, train staff on those policies and have fair and robust disciplinary processes.

In 2018, when activists put pressure on the University of Sussex to adopt the trans and non-binary equality policy, the university had already done all of this, as it was required to by its statutes.

Perversely, this was its defence for adopting the policy. It argued, and the High Court accepted, that even though the new policy might appear to put employees’ rights at risk, its overarching freedom of speech code recognised that it must have regard to laws, including the Equality Act, and that a well-informed reader would recognise this. In other words, those covered by the new policy were expected to understand that it was just for show and didn’t actually constrain free speech or condone belief discrimination – despite what the policy actually said.

Mrs Justice Lieven writes in her judgment that if someone objected to the holding of a gender-critical lecture, the university could allow it to proceed but require it to be submitted to be “read in advance by the University”. But this would be direct discrimination against the lecturer and would open universities to the risk of a group legal claim.

The choice that the University of Sussex faced was not between having or not having a robust policy against unlawful harassment of transgender people. It was between imposing or not imposing new, unlawful constraints on gender-critical speech. The “reasonably practicable” thing to do was not to do so.

Sussex’s high-level governance mechanisms have seen off the regulator for now, even though they didn’t block the discriminatory trans and non-binary policy. But if this judgment is allowed to stand, it will leave the OfS as a toothless watchdog. The burden of dragging universities through employment tribunals to demonstrate that they are breaching the Equality Act will return to individual employees.

The lesson of successful gender-critical belief claims – and last year’s Supreme Court judgment clarifying that “sex” in the Equality Act means biological sex – is that when higher courts are carefully led through the Equality Act, they get their judgments right. The OfS should appeal against this flawed ruling and make the right arguments in the Court of Appeal to get it overturned.

Maya Forstater is CEO of sex-based rights charity Sex Matters.