This opinion piece is written by Oscar Davies of the Garden Court Chambers Education Law and Employment & Discrimination Law Teams.
The Office for Students (OfS) has imposed potentially its largest ever fine of £585,000 on the University of Sussex, citing failures in its governance and breaches of its duties relating to freedom of speech. This eye-catching penalty follows the university’s handling of events surrounding Professor Kathleen Stock in 2021, and the OfS’s investigation concluded that Sussex failed to take adequate steps to secure free expression.
Has the OfS struck the right balance between enforcing statutory duties and respecting the autonomy of educational institutions to navigate sensitive and contested terrain? Is this a proportionate fine or response?
An unprecedented fine
The fine relates to Sussex’s response to protests and criticism faced by Professor Stock, whose views on sex and gender had provoked considerable controversy. The OfS concluded that the university failed to protect lawful speech and did not take sufficient action to ensure events could proceed without undue disruption.
This intervention is noteworthy, not only because it may be the largest fine issued by the OfS under its free speech remit to date, but also because it appears to display little deference to the complexities universities face when balancing the rights of different groups. The OfS’s approach reads more like that of a regulator enforcing a compliance checklist than a body attuned to the nuanced role of universities as forums for both rigorous debate and community cohesion.
The OfS report highlights that four statements in Sussex’s Trans and Non-Binary Equality Policy Statement contributed to a “chilling effect” on lawful speech:
- A requirement that course materials “positively represent trans people and trans lives”;
- A statement prohibiting reliance on or reinforcement of “stereotypical assumptions about trans people”;
- A blanket ban on “transphobic propaganda”;
- A provision classifying “transphobic abuse” as a serious disciplinary offence.
According to the OfS, these provisions collectively had the effect of deterring students and staff from expressing lawful, protected beliefs—particularly those that are “gender critical.” Professor Stock, for example, reportedly avoided teaching certain content out of concern for breaching these policies.
The fine was split between two breaches: £360,000 for failing to protect freedom of speech and academic freedom under condition E1, and £225,000 for governance failures under condition E2. The latter related to policies being adopted without proper delegated authority, raising broader concerns about institutional oversight.
Overreach by the Office for Students?
The case report finds that:
“Specifically, the OfS is concerned that the university may not have complied, or acted compatibly, with:
- Section 43 of the Education (No. 2) Act 1986 (duty relating to freedom of speech)
- Article 10 of the European Convention on Human Rights (the right to freedom of expression)
- Section 19 of the Equality Act 2010 (indirect discrimination)
- The Public Sector Equality Duty.” (Emphasis added.)
There are several concerning features of this analysis.
First, whilst the OfS does not make definitive findings in respect of Sussex’s compliance with the Human Rights Act 1998 and Equality Act 2010, given that a significant section of the case report is dedicated to assessing whether Sussex ‘may’ have breached these statutory duties, it appears that these concerns have informed the OfS’ conclusion that there was a “serious and significant breach” of E1. Yet, the OfS has not made definitive findings in respect of the statutory duties. As such, there is a real fairness issue if concerns about possible breach of statutory duties have informed the level of the penalty set by the OfS. If the findings in respect of possible breaches have not informed the penalty, why are these findings included in the case report?
Second, it is unclear whether the OfS has the expertise to undertake the complex exercise of determining whether there has been discrimination. Although the OfS is not the same as the Office of the Independent Adjudicator for Higher Education (‘the OIA’), the OfS is much more like the OIA than a judicial body. In respect of the OIA, the Court of Appeal held in R (Maxwell) v Officer of the Independent Adjudicator for Higher Education [2011] EWCA Civ 1236 at §§ 33-34:
“…the courts are not entitled to impose on the informal complaints review procedure of the OIA a requirement that it should have to adjudicate on issues, such as whether or not there has been disability discrimination. Adjudication of that issue usually involves making decisions on contested questions of fact and law, which require the more stringent and structured procedures of civil litigation for their proper determination… It is contrary to the whole spirit of a scheme established for the free and informal handling of students’ complaints that the outcomes under it should replicate judicial determinations, which continue to be available in civil proceedings in the ordinary courts, for which the OIA is not and was never intended to be a substitute.”
Third, the analysis in respect of Sussex’s possible breaches of statutory duties is difficult to follow. For example, in respect of Article 10 ECHR, the report concluded:
“The OfS has seen no credible evidence, including in reviewing as part of the investigation the decision-making documents underpinning the Trans and Non-Binary Equality Statement, that demonstrates that the university assessed the proportionality of its potential interferences with the right to freedom of expression, or that the potential interferences were themselves proportionate. The OfS has concerns that the university may not have carried out a proportionality assessment, and that these potential interferences with the right to freedom of expression could be disproportionate and therefore unlawful.”
It is unclear what evidence Sussex provided to the OfS and why it was found to be not ‘credible’. The only evidence referred to is the underlying “decision-making documents” (although this purports to be a non-exhaustive list of evidence considered by the OfS). It is trite law that a public authority’s decision-making does not necessarily need to be recorded in contemporaneous written documents. Without understanding why other evidence (if any) proffered by Sussex was not ‘credible’, it is difficult to understand the OfS’s reasoning here.
A Stark Contrast with TTT
The lack of institutional deference is especially striking when viewed alongside the High Court’s recent judgment in R (TTT) v Michaela Community Schools Trust [2024] EWHC 843 (Admin). In that case, the Court upheld the decisions of a school headteacher who had banned prayer rituals on school premises, recognising her legitimate attempt to balance competing rights and needs within the school community.
Mr Justice Linden emphasised the importance of context and gave weight to the school leader’s role in maintaining a coherent, inclusive environment while navigating difficult issues. Importantly, the Court acknowledged that such balancing acts are not straightforward and that decision-makers should be afforded a margin of appreciation.
Why, then, has the OfS not adopted a similarly respectful stance toward Sussex? Universities, like schools, must navigate complex social realities and conflicts of rights. Sussex was undoubtedly in a difficult position: trying to protect Professor Stock’s freedom of expression while also addressing the rights and concerns of trans students and staff, many of whom argued that her statements undermined their dignity and safety.
Rights in conflict
The Sussex case illustrates the often-overlooked reality that rights do not exist in a vacuum. Freedom of speech under Article 10 of the European Convention on Human Rights (ECHR) is not absolute. It can be limited to protect the rights and freedoms of others, including the right to private life (Article 8), right not to be discriminated against (Article 14), and protections for individuals proposing to undergo, undergoing or who have undergone gender reassignment (as recognised under section 7 Equality Act 2010). The university arguably has positive obligations under Article 14 to protect trans students from discrimination, though this has not been mentioned in the decision.
A university’s duty to uphold free speech cannot mean turning a blind eye to the impact of ‘free speech’ on marginalised groups. A university is bound by its obligations under the Human Rights Act 1998 and Equality Act 2010 and, in short, must strive to find a proportionate balance, ensuring that one person’s right to speak does not disproportionately interfere with another’s right to exist with dignity and respect.
The OfS decision seems to operate with little sense of this complexity. It places near-exclusive weight on free speech duties, treating the rights of trans students and staff as background noise.
The danger of a one-sided narrative
This one-dimensional approach risks sending the wrong message to universities. Rather than encouraging thoughtful, context-sensitive decision-making, it incentivises institutions to prioritise speech over all else, even when that speech may have serious impacts on other protected rights.
Moreover, the absence of institutional deference undermines the ability of universities to act as responsible stewards of their diverse communities. It also raises fundamental questions about the role of the OfS: is it a regulator or an enforcer? A partner in higher education governance, or a watchdog with a punitive mandate?
The decision puts educational establishments into difficult positions whereby a policy protecting trans students could be seen as too stringent, if it does not consider freedom of expression rights simultaneously.
A call for nuance
There is no doubt that freedom of speech must be robustly protected within universities. But safeguarding free expression cannot come at the expense of other core values – including the right of trans individuals to study and work in an environment free from discrimination and fear.
The OfS’s fine against Sussex risks creating a chilling effect, not just on protests or opposition to controversial views, but on the delicate balancing efforts of institutions trying to honour all their legal duties, including their positive obligations to marginalised students.
There must be a recognition that freedom of speech and other equality rights can and must coexist, and any rights must be balanced and the consequences must be proportionate. This decision puts into question whether the OfS has struck the correct balance.
