Outside of academic contexts, proportionate interference in free speech may be both OK – and expected

If you work at the Office for Students (OfS), it must be tricky adapting culture wars newspaper stories for scenarios for free speech guidance.

Especially when the real life case studies keep on coming.

The David Miller (anti-Zionist beliefs are protected) and Jo Phoenix (gender-critical beliefs are protected) have been the most high-profile ones concerning academic freedom in recent months.

But a slew of other cases offer other parallels too. And they are interesting precisely because they get into territory where a university or an SU is likely to want to attempt to restrict some behaviours and speech in pursuit of good campus relations and/or equality concerns – often over non-academic matters.

In Green Party v Ali, a case heard in the County Court, an elected official being targeted for their gender critical beliefs was pretty much told that democracy requires a thick skin.

R v Thomas Casserly, which concerned the Malicious Communications Act 1988 rather than harassment under the Equality Act, appears to suggest that someone with protected beliefs sending “grossly offensive” emails to elected officers should be able to claim “free speech”.

They are in many ways similar judgements – but simplistic readings are fraught with danger depending which side of the “gender critical” beliefs “debate” people are on.

Then in the much discussed case of Higgs v Farmor’s School, someone with GC beliefs claiming protection on the basis of that protected belief will now have their case heard at the Court of Appeal, based on issues like the content of the “manifestation”, tone, whether the worker has made clear that the views expressed are personal (and whether that might present a reputational risk), and the nature of the employer’s business (especially where there is a potential impact on vulnerable service users or clients).

It’s all about interference, see.

In Example 11 in OfS’ latest consultation on guidance on how to comply with the new free speech duties, there’s an example of a student handbook that states:

…misgendering is never acceptable. You must always address or refer to a person using their preferred pronouns.

OfS says that depending on the facts of the case, the rule is “very likely” to restrict freedom of speech within the law, and so removing this blanket rule is likely to be a reasonably practicable step that the university should now take.

This is because, says OfS, a student writing a dissertation in criminology might refer to trans women as “he” because the student considers this necessary for clarity. As such OfS is effectively saying that the “blanket” nature of the rule is a disproportionate interference with students’ free speech rights.

But beyond advising on the removal of this “blanket” rule, OfS offers nothing on what a rule might say instead that isn’t so “blanket”. And outside of the academic context, that’s important – given that elsewhere on the OfS website (in a section headed “students can’t be silenced”) we hear that forms of behaviour that can make university campuses “unsafe and uncomfortable” may be based on “aspects of students’ identities”, including protected characteristics like sexual orientation, religion or belief and gender reassignment:

Harassment can take many forms and could include anything from racist or misogynistic jokes disguised as banter, to ostracising someone from a group because of their differences. Other examples of harassment may include ridiculing someone’s religious beliefs or cultural practices.

Legally, it’s a complex and evolving area – and now there’s another case, albeit one heard at the Employment Tribunal and so not in and of itself setting any legal precedent.

In Lister v New College Swindon, the claimant was a maths teacher at a further education college who held gender critical beliefs recognised as protected under the Equality Act.

In 2021 a student requested to be addressed by a male name and pronoun, but in 2022 another student complained that the claimant failed to use the preferred name and pronoun, leading to distress:

Student B did make a complaint to the Respondent’s Student Services Department about the Claimant’s treatment of Student A. She complained that, despite their wish to have been referred to by their preferred male name and pronoun since the start of the academic year, the Claimant had failed to do so and had used their given birth name ‘deadname’ instead. She further asserted that he had enlisted Student A in the female only maths competition and made hurtful comments about their gender transition, saying that it was “invalid”. As a consequence, it was alleged that “my friend won’t attend his lessons because of the discrimination he is experiencing which is having a large effect on his education”. It was further alleged that Student A had been in tears and had been too afraid to report the behaviour himself.

The student’s complaint about Lister not adhering to the college’s Gender Reassignment Policy was upheld, leading to his dismissal after a disciplinary hearing in August 2022.

Though other allegations regarding his conduct and social media posts were investigated, they were not upheld. And then following his dismissal, he was barred from activities involving children by the Disclosure and Barring Service.

At tribunal, he argued that his dismissal was due to unfavourable treatment because of his beliefs and his actions to protect a student from what he considered a risk associated with cross-sex hormones.

The tribunal found no evidence supporting Lister’s perceived risk to the student from cross-sex hormones, and concluded that his actions violated the student’s rights.

His failure to follow the college’s policy, which aimed to prevent harassment and discrimination, was criticised. It noted that Lister manifested his beliefs in an inappropriate manner, and upheld the dismissal as reasonable – especially given his unwillingness to change his behaviour.

It found that the school’s policies hadn’t prevented Lister from holding his beliefs, nor were they applied to him in a way that was different to those who hold them. The question was whether his manifestation of them – even though said beliefs were protected – could amount to discrimination or harassment of a student.

The point is that OfS opens its draft guidance by reminding us of Article 10.1 in the Human Rights Act – that everyone has the right to freedom of expression, and that this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

It also quotes from Article 10.2 in the act – that the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

But the explanation underneath doesn’t really explain 10.2. It says that all speech is lawful (ie within the law) unless restricted by law, and says that any restriction of what is “within the law” must be set out in law made by, or authorised by, the state, or made by the courts. It goes on to say that free speech includes lawful speech that may be offensive or hurtful to some, and says that speech that amounts to unlawful harassment or unlawful incitement to hatred or violence (for instance) does not constitute free speech within the law and is not protected.

Lister’s speech may not have been unlawful per se – but the tribunal found that a proportionate interference was OK:

Everybody is permitted to express their views in a free and democratic society, but not to the extent that others are upset, distressed and/or harassed. The individual who was upset, Employee D, subsequently described why he had been upset; that the Claimant had been fixated on surgery (the Claimant accepted that he had spoken about mastectomies and castration) and had equated being transgender or non-binary to having a mental illness.

It was understandable that some people might have found those comments upsetting and/or offensive, particularly if they had undergone gender reassignment themselves. Accordingly, the comments … were a potentially objectionable manifestation of his beliefs.

Even though the Higher Education (Freedom of Speech) Act asks those it is regulating to have “particular regard” to the importance of freedom of speech when taking “reasonably practicable” steps to achieve it, there remains a duty to interfere proportionately with free speech – especially when OfS is also requiring universities to take steps to protect students from harassment, and take action where incidents of harassment or sexual misconduct occur.

What would help universities and their SUs would be material from OfS on balancing these competing and confusing rights – adding that while proportionate interference in academic free expression will be very hard to justify, there are any number of other contexts (not least OfS’ own “statement of expectations” on harassment) where it would be very hard to justify not interfering.

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