Written by Liam White, Students’ Union President
You’ve likely seen recent headlines about the Office for Students, the regulating body for higher education institutions in England, having fined the University of Sussex £585,000 for free speech and governance breaches. A useful supplement alongside the OfS’ own article is WonkHE’s summary, an in-depth look at the case including the context for the specific allegations.
Coverage of this topic has been incredibly divisive. Look online and you’ll see perspectives from academics and journalists alike – but I believe it’s crucial that students’ voices are heard too. It is, after all, our lived experience as students that regulators and policymakers are discussing.
A student view
Right up top I’ll acknowledge that I am not a student of, nor a representative of, Sussex University. The views here are based on my conversations with our own community, framed in both the national context of the OfS’ decision and how we feel about it at Surrey specifically.
When reading the flagged sections of Sussex’ Trans and Non-Binary Equality Policy, it is clear to me that the intent was to put measures in place to support trans students. The data is clear that trans students face stronger social rejection and are at greater risk of withdrawing from University compared to their non-trans course mates. Here at Surrey Students’ Union, we emphasise the importance of belonging at university to provide both better experience and better outcome. Belonging is, in turn, strongly tied to students feeling empowered to be themselves. Given that these students are already facing these overwhelming barriers to their education, it is reasonable to ask that their identity is protected from abuse, harassment, and bullying through the use of disciplinary procedures.
It is also reasonable that students exercise their right to protest when encountering views they deem to be damaging. A trans student I spoke to expressed her frustration with media-outlets that are criticising the student activism against Kathleen Stock, an academic with critical views about gender identity, that sparked this series of events. Freedom of speech cuts both ways, and I believe that challenge and debate are crucial tools in academia.
Freedom of speech and the trans lived experience
In my view, there are two distinct (though absolutely related) conversations here. The first is more philosophical and, necessarily, more political. Should freedom of speech include the right for an academic in philosophy to share critical views about trans gender identity? How does this stack up against the trans students who tell me how incredibly damaging it is to have their identity questioned in this way? Is it right for a University to regulate this, and what powers should they have?
Another student who approached me strongly sympathised with the Sussex students who protested against the academic, explaining that Kathleen Stock’s signing of the Declaration of Women’s Sex-Based Rights (which, among other views, asserts that the language and rights of ‘women’ and ‘females’ should refer to sex and not gender identity) represented an ‘existential threat’ to trans students. She felt uncomfortable with the idea that her tuition fees would contribute to the salary of someone who ‘is actively campaigning against my existence’.
In a separate conversation, a student took a different view. Though they strongly believe trans students should not face discrimination either overtly or indirectly, they also argued that an academic has the right to assert opinions. In this case, they felt such an academic should be allowed to express gender-critical beliefs, so long as they are not being targeted in a way that harasses or otherwise harms students.
This cuts down to the core of the debate. Students simultaneously believe that freedom of speech is incredibly important, but also want to see measures in place to protect them from harm. As Union President, I have a great deal of insight into how universities make decisions. So when faced with these opinions held by their students, university leaders implement change the best way they know how – policy and regulation.
The power (and danger) of policy
As I mentioned above, there are two main conversations in this topic. The second is much more process-driven, examining Sussex’ policies and governance structures and stacking these up against the OfS’ regulations.
Despite Sussex’s policy in question clearly having its roots in the realm of ethics, it is useful to also look at this case with more objective reason. When talking to students, though, much fewer had any specific comments on the regulatory issue. This makes sense; the many students (and, frankly, a lot of journalists) simply aren’t experienced with picking through policy and regulation in this way. This contextualises why the more vocal public discourse has been about the philosophical/ political question of freedom of speech.
To frame the issue, I shared with students the OfS’ case report outlining that Sussex’s policy breached its duty towards free speech by having stipulations such as: ‘course materials are required to positively represent trans people’. The reasoning is that this policy led to academics having their lawful ability to share gender-critical views restricted, in turn leading to them self-censoring.
Some students found this section persuasive due to its backing in both UK and European law, such as academics’ aforementioned lawful ability to share beliefs being protected under Section 19 of the Equality Act 2010. Other students, however, challenged this outcome and instead described how Sussex’ policies were attempts to protect students against hate speech. This can have varying definitions under law, but one student specifically cited the Public Order Act 1986 to state that academic materials that negatively represent trans people would classify as threatening or insulting writing with the intent to cause distress.
Very quickly, you can see how this ‘objective’ conversation steps into the realm of ethics! This is why I describe the power and danger of policy. As Students’ Unions, we lobby for policies that are right for our students, holding universities to account to deliver the experience we deserve. For Sussex, a policy was brought about with the intent to equip students with more power to be safeguarded against harm but, inadvertently, may have overextended and conflicted with UK law. Regardless of whether you agree with the premise that it should be considered a breach of principles, it highlights why policy must be carefully considered and implemented.
Holding up a mirror – the picture at Surrey
There’s a natural challenge that I raised to a member of Surrey’s Executive Board, which is the same question many leaders are asking themselves all over the country. What about us? Surrey has a Trans and Gender Identity Policy, reflecting our own approach to safeguarding the trans members of our community. A quick comparison shows that our policy is a lot broader in scope, focusing on the entire Surrey community (students, staff, visitors and beyond) and being embedded in university values and parallel policy.
A criticism made by the OfS on Sussex’s policy was that it did not follow proper governance (how the policy was decided and implemented), and that many of its measures were not justified as proportionate (the reasoning for why the requirements were made). In Surrey’s case, these appear to be directly considered – including the fact that the policy was built bottom-up alongside trans students, staff, and us at the Students’ Union. Helpfully, UK law and the University’s own freedom of speech policy is also embedded throughout.
A policy is only as good as its implementation, though. Whilst it is a useful tool that provides guidance to the trans community about what protections are in place and where further support can be accessed, this does not make things perfect. Yes, staff are encouraged to complete LGBTQIA+ Awareness Training – but it is not compulsory, and many students report feeling unsupported by academics or professional staff when seeking support about transitioning. Yes, there is guidance on changing your name for students who transition at university – but the disparate systems around the University can make this extremely challenging, and still result in instances of deadnaming.
Accountability is therefore important here. Beyond our work in advocating for trans students and providing our own guidance and support, I have the opportunity to examine our policy through the integration of Sabbatical Officers in various parts of Surrey’s governance committees. In light of the situation at Sussex, and following my conversation with a member of the Executive Board, I will be representing our students’ voice in a University Senate Sub-Committee in May. This is set up to specifically cover academic freedom and freedom of speech, to self-examine our own approach.
A representative view – what do we want to see as students?
I am a psychology graduate, so do not have the academic toolset to pick apart the legal, political, or philosophical framework here. Instead, my skills lie in critical-thinking and advocacy. Accepting the premise of the OfS’s investigation, I can see the internal consistency throughout the report and how they reached their conclusions. The challenge comes from us currently only having a sample size of one, with a regulatory issue that applies to many more higher education institutions. The fact that this ruling from the OfS has caused such a debate points to an absence of clear guidelines to universities about how where to draw the line when academic freedom and student protection clash.
My personal fear is that many universities will now avoid using policy to enshrine the protection of students from harassment. Anecdotally, I know that many of my Sabbatical Officer colleagues across the UK are trying to push through exactly these kinds of protections, and fear they will just get blocked by university leadership who do not want to face similar sanctions.
It is undeniable that many of our trans students face additional hardship at university, and it’s our representative duty to support them. But this issue extends even further, to all of the student communities who face challenges because of race, disability, belief, and so on. I fear that the OfS’s ruling sets a precedent that writing policy with best-intention can be met with sanctions that can be crippling, especially given the broken funding model that higher education is already facing.
Equally, though, I feel that it is in our students’ best interest for free speech to be a protected standard. Our education will be left worse-off if academics and students do not have the ability to challenge one another with their researched beliefs, and I am a strong supporter of people taking a stand to speak out for what they believe in. Yet our education will also be left worse-off if trans students or any other marginalised group feel unable to access university, out of fear that their very existence will be criticised and that they will experience threat and insult.
These beliefs, to some extent, contradict. Both within our student community, and even within myself. That is why we need further clarification from regulators and from government on what this means for our education – and why we must be championing the voices of our students so that we get this right. It is, after all, our own education that is on the line.
