A High Court judge has overturned a £585,000 fine imposed on the University of Sussex for adopting a transgender policy that limited free speech and led to Professor Kathleen Stock feeling compelled to resign.
Ruling on Regulatory Powers
The High Court ruled on [date] that the Office for Students (OfS) watchdog lacked the authority to impose the penalty, following a landmark judicial review claim. The judgment is expected to have far-reaching consequences for free speech at universities, potentially limiting the regulator's ability to intervene on such matters in the future.
Background of the Case
Professor Stock, a gender-critical feminist, resigned from the University of Sussex in 2021, citing pressure to self-censor her work amid protests from pro-trans student groups. The OfS argued that the university's transgender policy created a chilling effect on free speech on campus. The policy required all courses to positively represent trans people and stated that transphobic propaganda would not be tolerated.
However, lawyers representing Sussex contended that the OfS did not have the power to impose a fine based on this policy, as it did not constitute a governing document. Under the Higher Education and Research Act 2017, the regulator is only permitted to scrutinise the governing documents of an institution.
Judgment Details
In her judgment delivered this morning, Mrs Justice Lieven ruled in favour of the university, finding that the OfS had misdirected itself. She also determined that the regulator was guilty of bias, having approached the decision with a closed mind and unlawfully predetermined the outcome.
Following the judgment, Sussex's vice chancellor, Professor Sasha Roseneil, described it as a vindication. She stated: "It is a devastating indictment of the impartiality and competence of the OfS, implicating its operations, leadership, governance, and strategy. It raises important and urgent questions for the Government as it plans to grant ever more powers to the regulator."
The OfS expressed disappointment and stated it was considering its next steps.
Implications for Free Speech
Sussex was the first university to be fined for free speech issues. During a previous hearing, Chris Buttler KC, acting for Sussex, told the High Court that the affair had severely damaged the university's reputation as a bastion of free speech. He noted that the policy was based on a template from Advance HE, a higher education charity, and that other universities had adopted similar policies.
Buttler argued that the policy was not a governing document and therefore could not lead to disciplinary action against academics. After Professor Stock's departure, the policy was updated in 2022 and 2023, with the latter version clarifying that it did not justify sanctioning academic staff for questioning or testing received wisdom, or imposing disproportionate restrictions on freedom of speech.
Buttler also contended that the OfS focused on the transgender policy as a governing document instead of investigating student protesters, calling the investigation a paper exercise in which only Professor Stock was interviewed.
Monica Carss-Frisk KC, representing the OfS, argued in written submissions that the university had breached a condition of registration requiring governing documents to safeguard academic freedom and freedom of speech. She maintained that the OfS had jurisdiction to consider all relevant matters and had conducted a careful investigation. She dismissed the suggestion that the trans policy was not a governing document as misconceived.
