With less than two months to go, OfS remains silent on free speech – but the legal cases keep coming

Both are intended at “changing the culture” – taking understanding of the issues out of the offices of registrars and legal firms and into a more confident (to express itself within the law) student and staff community.

As such, you might have thought that by now, we’d have seen the final guidance on the “secure” duty that OfS ran consultations on in December 2023 and March 2024.

Alas, unless you’re counting the media work he did over the Sussex case that he had no formal involvement in, the last we heard from Director for Freedom of Speech and Academic Freedom Arif Ahmed on the issue was back in February – when he both promised to update OfS’ website as timelines become clearer, and to publish final guidance in advance of the new duties coming into effect.

It is quite the thing for OfS’ Sussex fine to partly be over the governance of its policies, and to then be leaving it this late to be publishing formal guidance – that you’d assume will need some digesting, some reconciliation with the new harassment duty, proper time for consultation and then an actual university committee or two to sign it off.

Tribunal rulings

Meanwhile in the real world the cases keep coming. A few weeks back an employment tribunal ruled that an academic couldn’t just say “free speech” to defend his “banter” with students – now another tribunal has rejected a claim from two academics that sued their own union after being called transphobic.

Deirdre O’Neill, a lecturer at Hertfordshire University, and Michael Wayne, a professor at Brunel University, were criticised by UCU over a film they had directed, Adult Human Female – which UCU said was an attack on trans identity.

Protesters blocked screenings of Adult Human Female at the University of Edinburgh and “hurled insults at those trying to attend” – picking up widespread coverage. The academics said UCU’s public opposition to them amounted to unlawful discrimination on grounds of their gender-critical belief that there are only two sexes.

Away from the headlines and press releases, the judgement itself is useful because of the way it illustrates the competing rights and freedoms, and the legal framework which is then used to weigh up cases like this.

From the outset, the tribunal established that while the claimants’ gender critical beliefs were undoubtedly protected under the Equality Act 2010 – a point the UCU never disputed – this protection was not absolute when it came to how those beliefs were manifested.

The case turned on whether UCU had unlawfully discriminated against or harassed the claimants under section 57 of the Act, which governs the conduct of trade organisations toward their members.

In examining the claims of direct discrimination, the tribunal applied established legal principles from case law, particularly the “Shamoon” decision, which allows tribunals to focus on “why” an alleged discriminator acted as they did rather than getting caught up in comparator exercises.

More significantly, it applied the recent Higgs v Farmor’s School precedent, which established that even in cases involving the manifestation of protected beliefs, there can be an “objective justification” defense if the response is proportionate and aimed at protecting the rights of others. This was an important framework that would ultimately determine the outcome.

The tribunal then examined each action complained of by the claimants.

• There was an email to the University Principal on 7 December 2022 – that was found not to constitute detriment or harassment – it wasn’t sent to the claimants, didn’t name them, and was based on legitimate concerns about the film’s content potentially breaching the university’s dignity and respect policies.
• Various tweets and retweets by the UCU Edinburgh branch, while describing the film as “transphobic,” did not directly name or target the claimants. Many were just amplifications of other organisations’ concerns, and the tribunal found the connection between these social media posts and any harm to the claimants to be “too remote.”

A big theme in the tribunal’s reasoning concerned the specific requirements of section 57 regarding harassment. The law is clear that harassment by a trade organisation must be “in relation to membership of it.” The tribunal found the threshold not met – the claimants remained full members of UCU with unaffected rights, they weren’t members of the Edinburgh branch that took the complained-of actions, and nothing in UCU’s conduct related to their actual membership status.

That interpretation effectively placed UCU’s actions outside the scope of unlawful harassment under the Act.

The tribunal also gave significant weight to the nature of the film’s promotional material, particularly an Eventbrite advertisement. The questions posed – “Is it really harmless when men identify into the female sex?” and whether it’s “progressive for doctors to modify the bodies of young people” – were found to be potentially provocative.

The tribunal noted that the film’s title, “Adult Human Female,” was associated with anti-trans activism and could reasonably be seen as a “dog whistle.” These factors provided UCU with legitimate grounds for concern about the impact on its trans and non-binary members.

Applying that objective justification test from Higgs, the tribunal found UCU’s actions were proportionate responses to legitimate aims. The union sought to protect its trans and non-binary members from discrimination, uphold its equality policies, and ensure compliance with university policies.

Crucially, UCU didn’t attempt to ban the film entirely or prevent its screening everywhere – it merely opposed its showing on university premises. This response, aligned with concerns from multiple stakeholders including the Staff Pride Network and student organisations, demonstrated proportionality for the tribunal.

It distinguished between the absolute right to hold gender critical beliefs and the qualified right to manifest them. Following Higgs and Page, they recognised that manifestations of belief can be limited when they impact the rights and dignity of others. UCU’s opposition was directed at the specific way the beliefs were being manifested through the film and its marketing, not at the beliefs themselves.

That distinction was also reinforced by a letter from Gen Sec Jo Grady, which explicitly acknowledged that gender critical beliefs are protected while maintaining the union’s right to oppose certain expressions of those beliefs.

Ultimately, the tribunal concluded that UCU acted not out of discrimination against gender critical beliefs but from a genuine concern to protect vulnerable members and maintain dignity in university spaces. The “reason why” was the union’s assessment that the film’s content and promotion posed risks to the wellbeing of trans members and could breach institutional policies. This was found to be a legitimate and proportionate response rather than unlawful discrimination.

The decision and the reasoning behind it strikes a careful balance on the old see-saw – protecting freedom of belief and protecting individuals from harm. While the claimants have an absolute right to hold gender critical beliefs, the tribunal affirmed that this doesn’t translate to an unqualified right to manifest those beliefs in any manner without regard to impact on others.

For the tribunal, UCU’s actions fell within the permissible boundaries of limiting certain manifestations to protect the dignity and rights of other members, particularly given the specific concerns raised by the film’s promotional material and the institutional context of a university screening.

Academic contexts?

There are no direct contradictions between the tribunal’s reasoning and OfS’ draft guidance last year. But there’s no doubt that the tribunal placed greater weight on the balance between competing rights and on the absence of targeted conduct or power imbalance, whereas OfS adopts a more prescriptive posture about interference with lawful expression, especially by institutional actors.

What about the “academic freedom” stuff? Because neither claimant was employed by the University of Edinburgh, and the film at the centre of the dispute was not part of their formal research output, the tribunal treated the matter as one of expression in a public, not academic, context. That very much limited any scope for academic freedom arguments to be considered, and the judgment did not explore whether there had been a chilling effect on academic inquiry or debate.

Meanwhile, OfS’s draft guidance refers repeatedly – if vaguely – to “academic contexts”, suggesting a broader regulatory commitment to protecting controversial but lawful speech where it relates to teaching, research, or scholarly discussion.

It didn’t then and still hasn’t defined the term, instead relying on illustrative examples to imply that academic freedom encompasses not only formal research outputs but also classroom discussion, speaker events, and all sorts of other public-facing expressions of academic thought.

But as we’ve noted on here before, contexts in the case law matter – there is a much stronger protection for freedom of expression in a proper academic context than there is for the student Rugby Club on a social in Ritzy’s.

It’s both understanding those differences – where the lines are, and where the angles on the see-saw differ in different contexts related to universities – that are absolutely crucial to talking to students from August 1st about both the new harassment duty and the new Free Speech duty.

For the time being, it looks like a regulator preparing to chuck its heavy sandbags on both sides of the see-saw won’t be offering a hand with what to say when a student is brave enough puts their hand up to ask a question in this space. How ironic.