So are universities allowed to chill misogyny or not?

These will be of particular interest to those charged with implementing compliance lessons across the rest of the sector.

OfS found fault with four key statements in the university’s Trans and Non-Binary Equality Policy Statement:

• A requirement for “any materials within relevant courses and modules [to] positively represent trans people and trans lives.”
• A statement that “the curriculum shall not rely on or reinforce stereotypical assumptions about trans people”.
• A statement that “transphobic propaganda … will not be tolerated.”
• A statement that “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.”

Since the investigation started back in 2021, the university has amended the policy statement several times – OfS’ report actually looks at versions from 2018, 2022, 2023 and 2024.

The 2022 amendments included removing the requirement to represent trans lives positively in academic content and revising the stereotyping statement to read:

[t]he curriculum shall not rely on or seek to reinforce stereotypical assumptions about trans people. (emphasis added)

In early 2023, a general statement which was aimed at safeguarding freedom of speech and academic freedom was inserted. And in that version, the university removed the term “transphobic propaganda”, and added a definition of “transphobic abuse, harassment or bullying”, which refers to an objective test.

Those changes didn’t go far enough for OfS – because each version of the statement continued to “prohibit lawful speech and have a chilling effect”.

Crucially, the 2022 amendment to the stereotyping statement (“not seek to”) narrowed the original restriction – but OfS says that lack of adequate safeguards meant it still restricted lawful speech.

OfS does “give credit” to Sussex for the added “Safeguard Statement” from an academic freedom point of view – that expressly stated that:

…nothing in this Policy Statement should be taken to justify sanctioning academic staff for questioning or testing received wisdom or putting forward new ideas including controversial or unpopular opinions within the law.

But OfS argues the positive impact of that was undermined by the continued presence of the Stereotyping Statement, the Disciplinary Statement, and the new restriction on “abusive, bullying or harassing material” replacing the Transphobic Propaganda Statement.

These elements implied the university deemed such restrictions proportionate and justified,” says the report. “Consequently, the restrictive and chilling effect on lawful speech remained.

Meanwhile, while the 2023 policy introduced an objective definition for “transphobic abuse, harassment or bullying” and “abusive, bullying or harassing material” – requiring an assessment based on whether behaviours could reasonably cause distress or fear among trans people – but OfS still found that those terms could still restrict lawful speech.

This was because “the definition was broader than existing legal prohibitions and not confined to them.”

The latest version of the Sussex policy reads as follows:

Transphobic abuse, harassment or bullying (e.g. 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. After consideration of its form and contents, material (e.g. written materials, graffiti or recordings) that is found objectively to be abusive, bullying, or harassing will be removed from University premises.

OfS says it has “reserved its position” on whether that still represents a breach — even with this footnote in the policy:

We use the term “transphobic abuse, harassment or bullying” to mean unwanted behaviours and communications that could reasonably be expected to cause distress or fear among trans people. This definition is objective and replicates the definition in the Protection from Harassment Act 1997, as set out in the Cod for Crown Prosecutors.

If you’re trying, as the harassment duty does, to “change the culture” on campus, a message that seems to be saying “never even attempt to discourage speech that might technically be lawful but still be hugely offensive” feels hugely problematic.

And so if you are, say, deliberately trying to “chill” (but not actually publish) technically legal forms of homophobia and misogyny, the question is whether you’re allowed to – and in which contexts.

As Sunder Katwala (the director of British Future) often points out, there is plenty of  “reprehensible” yet “within the law” speech that most would agree is reasonable for universities to ban – discriminatory speech that would not meet a legal threshold, conspiracy theories, acts inimical to academic freedom like book burning – and even holocaust denial.

Rights and freedoms

OfS is operating on the basis that the Human Rights Act 1998, particularly Article 10 of the European Convention on Human Rights (freedom of expression), guarantees the right to freedom of expression, while 10(2) acknowledges that this right may be subject to restrictions – but only if those restrictions are “prescribed by law” and “necessary in a democratic society” for legitimate aims, such as the protection of the rights of others.

Where things become contentious is OfS’ interpretation of what constitutes an unjustified or disproportionate limitation on speech. The stance in the Sussex case appears to be that even well-intentioned policy statements – particularly those designed to create inclusive and respectful learning environments – can infringe on freedom of speech if they might chill or deter lawful, albeit controversial, discourse.

Take, for instance, the phrase “transphobic propaganda will not be tolerated.” It’s emotionally powerful, and morally resonant – but also vague. Who decides what qualifies as “propaganda”? Could a critique of gender identity theory, delivered in an academic context, fall under that umbrella? OfS is suggesting that the ambiguity of terms like that, and their placement within disciplinary frameworks, creates an environment where staff and students might reasonably fear that lawful speech could attract punishment. Whether or not punishment has occurred is less important than whether the possibility of it has a chilling effect.

That line of reasoning echoes some of the case law under the HRA, which stresses that restrictions on speech must be precise and proportionate – other parts of the report criticise Sussex for not carrying out a test. And we know that the European Court of Human Rights has often upheld the right to offend, shock, or disturb – especially in academic, artistic, or political settings.

The countervailing logic is that universities have legal and moral duties under the Equality Act 2010, the Public Sector Equality Duty, and basic safeguarding principles. Policies like Sussex’s are trying to balance that responsibility – to ensure trans students feel safe, respected, and included. It’s not hard to see how a university, faced with rising hate crime statistics and concerns about marginalisation, might prioritise dignity over absolutist free speech.

The Public Sector Equality Duty is interesting because it requires public bodies to consider the need to eliminate discrimination, advance equality, and foster good relations between people with and without protected characteristics (e.g. sex, religion, disability, gender reassignment). But a common objection is that the “fostering good relations” requirement could justify restricting speech deemed offensive to someone’s religion or identity.

This, some say, could chill lawful speech – encouraging institutions like universities to ban speakers or penalize individuals for expressing views on religion, reproductive rights, or animal rights that offend certain groups.

The view of the Tsar

Arif Ahmed’s first major speech in the role of Director for Freedom of Speech and Academic Freedom back in October 2023 makes four observations on PSED.

The first is that religion and philosophical belief are protected characteristics under the Equality Duty. Philosophical beliefs must be serious, coherent, genuinely held, and compatible with democratic values, and includes beliefs like veganism, gender-critical feminism, and support for Scottish independence. Because of this, the Equality Duty may actually support free speech – suppressing one side of a political or ethical debate (e.g. nationalists vs. unionists) in the name of avoiding offence would undermine the duty to foster good relations. “Disagreement often causes offence – that doesn’t justify censorship.”

The second is that the duty is procedural, not outcome-based – it doesn’t require achieving equality-related results. Instead, it requires public bodies to consider equality impacts when making decisions, alongside other factors. It influences process, not mandates outcomes. And given the duty in the Higher Education (Freedom of Speech) Act 2023 to pay “particular regard” to the importance of freedom of speech when considering any balancing provisions (ie “reasonably practicable”), the outcomes become less important.

He also argues that historically, marginalised groups have relied on free expression – while censorship served the powerful. The U.S. Civil Rights movement is the example used – protestors like Martin Luther King and Ralph Abernathy were jailed for speech, while their opponents used suppression to maintain the status quo.

But his fourth is that merely offensive speech, “at any rate in an academic context”, doesn’t come anywhere near contravention of the broader duties and prohibitions under the Equality Act. Quoting from Equality and Human Rights Commission guidance, he reminded the audience:

…that universities and colleges: ‘are not restricted in the range of issues, ideas and materials [they] use in [their] syllabus and will have the academic freedom to expose students to a range of thoughts and ideas, however controversial.

Even if the content of the curriculum causes offence to students with certain protected characteristics, this will not make it unlawful unless it is delivered in a way which results in harassment or subjects students to discrimination or other detriment.’ As the history of religious conflict ought to teach us, the freedom to offend is a fundamental right and the Equality Act does nothing to undermine it.

That is, though, where things get difficult.

Complex cases

In Higgs v Farmor’s School, the Court of Appeal ruled that a pastoral administrator and work experience manager in a secondary school’s dismissal for gender-critical social media posts was discriminatory, affirming her right to express protected philosophical beliefs. Higgs had been dismissed after a third-party complaint about posts the school deemed offensive and potentially harassing.

The Court held that it would be unlawful direct discrimination for an employer to discipline or dismiss an employee merely because they have expressed a religious or protected philosophical belief in a way which the employer, or a third party with whom it wishes to protect its reputation, objects.

That said, sometimes an employer’s decision to discipline or dismiss an employee is motivated not simply by the expression of the protected belief itself (or a third parties’ reaction to it), but rather by something that is objectionable about the particular way in which it the employee expressed their protected belief (assessed objectively).

And where it is possible to separate the employee’s “objectionable manifestation” of their protected belief from the mere expression of it in this way, then it would be lawful for an employer to discipline or dismiss the employee if that sanction is objectively justified.

In that case, the employer couldn’t prove that the disciplinary action/dismissal was a proportionate response to the objectionable way in which employee had expressed their protected belief — partly because they weren’t at work and no individual was attacked/targeted.

But in Lister v New College Swindon, where a claimant was a maths teacher at a further education college who held gender critical beliefs, there was a different outcome.

There 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. 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.

But 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.

Ongoing questions

If we then circle back to the OfS report on Sussex, two questions emerge — which help to explain Sussex VC Sasha Roseneil’s argument that the ruling makes it now “virtually impossible for universities to prevent abuse, harassment or bullying, to protect groups subject to harmful propaganda, or to determine that stereotyped assumptions should not be relied upon in the university curriculum”.

On the curriculum stuff, there’s a question about academic freedom and who gets to distinguish between the exercise of genuine academic freedom from abuse designed solely to generate spectacle while deploying a veneer of legitimacy — Naomi Waltham-Smith makes some powerful arguments to that end here.

Next, it’s not clear that all conduct is equally protected under the Human Rights Act’s interpretation of free expression – from a seminar discussion to an offhand comment at a social event, or a heated exchange at a protest. It’s one thing for a lecturer to challenge prevailing orthodoxies in a philosophy seminar, another for a student to be subjected to repeated, identity-focused commentary during a group project or society event.

OfS’ draft guidance on the new duties last year reminds readers that the European Court of Human Rights has affirmed that academic freedom should include freedom to:

…disseminate information and freedom to conduct research and distribute knowledge and truth without restriction.

… and has stated that this freedom:

…is not restricted to academic or scientific research, but also extends to the academics’ freedom to express freely their views and opinions, even if controversial or unpopular, in the areas of their research, professional expertise and competence.

But while OfS offers some clarity on the interaction between the Equality Act and free speech in strictly academic contexts, it says very little on the interaction(s) in non- (or at least less-) academic contexts, and nor does it offer any clarity on whether the full range of student (and staff) activities on (and off) campus would amount to an “academic context”.

Students interact with each other and academic staff in all sorts of contexts, informal and non-formal learning sessions, office hours, both online and in person, academic society events with staff, student staff committees, clubbing in town, playing sport etc – and so understanding what constitutes an “academic context” continues to be crucial, partly because its new harassment duty very much covers the full range of activities and interactions.

And so the second question is whether a policy could – or indeed, should – make more of those contextual distinctions? The legal framework on which the whole thing is based feels like it ought to be possible to differentiate between academic engagement and extracurricular interaction, and between speech that forms part of learning and inquiry, and conduct that undermines inclusion or dignity in social or pastoral settings.

Maybe, when it comes, OfS’ revised guidance on the “secure” duty will clarify, or at least offer a view on all of this. But what a lot of this really comes down to is as follows.

If Andrew Tate thinks women belong in the kitchen, that’s not illegal to think or even say. But if OfS is seriously suggesting that universities can’t seek to even discourage expressions of that view unless they amount to harassment – especially at social events rather than in well-argued essays – either the law needs to change or its interpretation of it does.

Sometimes discouraging and even banning “legal but harmful” speech matters. The contexts in which universities can do that matters much more than whether Cambridge philosophy academics think they should.