UK universities, freedom of speech, and trans issues - the 'long read'
This week, Pink News asked me to give an opinion on the public debate about freedom of speech and trans issues in UK universities.
In the Pink News article, I tried to express my view that, in the context of a now contentious debate, human rights law, with its framework for achieving a 'fair balance', is the best way for settling disputes over what can or should be said on trans issues in universities.
The Pink News article was, understandably, subject to a word length restriction and, therefore, I am posting here the full, 'long read', version of the article.
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There is public discussion at the moment about freedom of speech in UK universities. Some people claim that freedom of speech is ‘under attack’ and, in some cases, that they are being ‘silenced’.
The current controversy focuses on discussion and debate in universities about trans issues.
A recent example of this is the well publicised reported decision at Merton College, Oxford, to ask attendees at an event on 'perspectives on trans intersectionality' to exclude language 'which denies the validity of trans identity', and then to withdraw that request on the basis of concerns that it interfered with freedom of speech. This is one example of a small number of similar cases that have recently arisen in universities.
A recent example of this is the well publicised reported decision at Merton College, Oxford, to ask attendees at an event on 'perspectives on trans intersectionality' to exclude language 'which denies the validity of trans identity', and then to withdraw that request on the basis of concerns that it interfered with freedom of speech. This is one example of a small number of similar cases that have recently arisen in universities.
I've been in universities for 25 years and I know that freedom of speech is vital to my work. Without freedom of speech I would be unable to, as the Education Reform Act 1988 puts it, ‘question and test received wisdom’ and ‘put forward new ideas and controversial or unpopular opinions’.
Below, I outline my personal view on how universities might approach the question of freedom of speech within the context of the current controversy.
The law
Freedom of speech in UK universities is protected by law.
The Education (No. 2) Act 1986 places a duty on universities in England and Wales to take reasonably practicable steps to ensure that freedom of speech, within the law, is secured for staff, students and visiting speakers.
Article 10 of the European Convention on Human Rights (ECHR) – given further effect by the Human Rights Act 1998 – guarantees the right to ‘freedom of expression’.
The Article 10 ECHR right to freedom of expression explicitly includes ‘freedom to hold opinions and to receive and impart information and ideas’. This is vital in a university setting, where without being able to receive and send out information and ideas academics couldn't do their jobs.
Article 10 ECHR, however, does not provide an absolute right to freedom of expression. Rather, it allows this right to be restricted if it is lawful to do so and ‘necessary in a democratic society’ to meet a legitimate aim, such as ‘the prevention of disorder or crime’ or ‘the protection of the reputation or rights of others’.
In essence, then, Article 10 ECHR ensures that in a university (as elsewhere) freedom of expression is protected, within certain parameters. In other words, not all academic speech will qualify for the protection of Article 10 ECHR.
When can academic speech be restricted?
In my view, there can be no hard and fast rules on when academic speech can be restricted.
When to apply any restriction needs to be considered on a case-by-case basis, using two overarching principles developed by the European Court of Human Rights.
The first principle is that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress, and for each individual’s self-fulfilment.
The second principle is that the right to freedom of expression is applicable not only to ‘information’ or ‘ideas’ that are favourably received, regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.
Being able to ‘offend, shock or disturb’ is a condition of the pluralism, tolerance and broadmindedness that is the foundation of a democratic society. In other words, we would destroy democracy by suppressing that which was, for example, merely ‘shocking’.
If we apply these two principles, freedom of expression should only be restricted in a university if it is lawful to do so, ‘necessary in a democratic society’ – ‘necessary’ implying the existence of a ‘pressing social need’ – and any restriction should be ‘proportionate’ to the aim pursued.
‘Anti-trans’ speech
To apply the above principles, we can consider the now commonly discussed issue of ‘anti-trans’ speech in universities.
Let’s suppose a speaker has been invited to a university to give a talk about ‘gender ideology’, the essence of which is that ‘trans women are not women’. The speaker intends to argue that ‘a person with a Gender Recognition Certificate which states they are a woman is still really a man’.
Let’s also suppose that the speaker states, in advance, that their talk will not infringe the criminal law because it is a ‘scientific talk’ that will not cause, for example, harassment, alarm or distress to another person.
Let's further suppose that opponents of the talk have stated that its contents are 'anti-trans' and would constitute 'hate speech' that is directed against a particular minority.
In the context of such a scenario, how might a university approach the question of whether to restrict a talk of this kind and decide what sort of restriction it could impose?
To answer these questions, a university would need to consider three things:
Is there a legal basis for a restriction?
Any restriction imposed on the Article 10 ECHR right to freedom of expression must normally have a basis in domestic law.
In our scenario, the speaker has claimed that their talk will not infringe the criminal law. However, given the concerns expressed about the talk, a university would need to give consideration to whether the talk is likely to infringe any criminal law, as well as break any civil law.
For example, a university would need to consider if the talk may cause: fear or provocation of violence; harassment, alarm, or distress; or stir up hatred on one or more of a number of grounds, including sexual orientation (which are all criminal offences, in England and Wales, under the Public Order Act 1986).
A university would also, for example, need to consider if the talk would infringe any aspect of equality law contained in the Equality Act 2010. Of particular relevance is the public sector equality duty that requires a university to, among other things, have due regard to the need to 'foster good relations between persons who share a relevant protected characteristic [including "gender reassignment"] and persons who do not share it' and, in doing so, 'tackle prejudice, and promote understanding'.
When undertaking such consideration, a university can be guided by the principle that its duty, under the Education (No. 2) Act 1986, to take reasonably practicable steps to ensure freedom of speech, extends only to speech that is 'within the law'. It can be further guided by the principle of the European Court of Human Rights that hate speech directed towards minorities is not protected under Article 10 ECHR.
In our scenario, the speaker has claimed that their talk will not infringe the criminal law. However, given the concerns expressed about the talk, a university would need to give consideration to whether the talk is likely to infringe any criminal law, as well as break any civil law.
For example, a university would need to consider if the talk may cause: fear or provocation of violence; harassment, alarm, or distress; or stir up hatred on one or more of a number of grounds, including sexual orientation (which are all criminal offences, in England and Wales, under the Public Order Act 1986).
A university would also, for example, need to consider if the talk would infringe any aspect of equality law contained in the Equality Act 2010. Of particular relevance is the public sector equality duty that requires a university to, among other things, have due regard to the need to 'foster good relations between persons who share a relevant protected characteristic [including "gender reassignment"] and persons who do not share it' and, in doing so, 'tackle prejudice, and promote understanding'.
When undertaking such consideration, a university can be guided by the principle that its duty, under the Education (No. 2) Act 1986, to take reasonably practicable steps to ensure freedom of speech, extends only to speech that is 'within the law'. It can be further guided by the principle of the European Court of Human Rights that hate speech directed towards minorities is not protected under Article 10 ECHR.
A clear indication that the talk would amount to a criminal offence or give rise to a breach of civil law, and that this could not be avoided in advance, would give a university a clear basis on which to impose a restriction. However, in the context of our scenario - a 'scientific talk' presented in accordance with the usual academic convention that the speaker will have a commitment to the transmission of factual and truthful knowledge - it is more likely that there will be some level of uncertainty as to whether, or to what extent, the talk could break the law.
It will be for a university, therefore, to carefully review all of the applicable criminal and civil law and, if there is any concern that the talk may infringe it, to impose restrictions that are designed to allow the talk to proceed, in order to meet the obligation to protect freedom of expression, but to reduce any risks it has identified.
It will be for a university, therefore, to carefully review all of the applicable criminal and civil law and, if there is any concern that the talk may infringe it, to impose restrictions that are designed to allow the talk to proceed, in order to meet the obligation to protect freedom of expression, but to reduce any risks it has identified.
What is the legitimate aim of any restriction that is imposed?
For the purposes of Article 10 ECHR, any lawful restriction that a university might impose on the talk must meet one or more legitimate aims. Article 10 ECHR allows for 'formalities, conditions, restrictions or penalties' to be applied in pursuit of a number of aims including, as outlined above, the 'prevention of disorder or crime' or 'the protection of the reputation or rights of others'.
In the context of our scenario, it could be argued that, for example, the talk may promote or justify hatred of trans people, by insulting or ridiculing them as a group, and this could give rise to crimes being committed against them.
It could also be argued, for example, that the talk might encourage a lack of respect for the human dignity of trans people that would strike at, and potentially diminish, their human rights and freedoms.
It could also be argued, for example, that the talk might encourage a lack of respect for the human dignity of trans people that would strike at, and potentially diminish, their human rights and freedoms.
If either or both of these examples (or other examples) are accepted by a university as potential outcomes of the talk, then placing some restriction on the talk could be said to pursue an aim that is legitimate: in these examples, the aim would be to prevent crime and/or protect the rights of others.
Is a restriction necessary in a democratic society?
For the purposes of Article 10 ECHR, any lawful restriction placed on freedom of expression to meet a legitimate aim must be necessary in a democratic society. The hallmarks of a democratic society are, as outlined above, pluralism, tolerance and broadmindedness. Therefore, any interference with freedom of expression that is 'necessary' in a democratic society must be based on a ‘pressing social need’.
If a university decides that a pressing social need exists to place a restriction on the talk - the need, for example, to protect trans staff or students who may be negatively impacted by the talk, in the ways described in the above examples - then it must consider what restriction is ‘proportionate to the legitimate aim pursued’.
What restriction, therefore, should be applied? What would be proportionate in the context of the talk?
A university could, for example, decide that a ‘trigger warning’ is necessary when advertising the event. It could decide that the visiting speaker can only give their talk if another speaker offers a counter view or is given a right to reply. It could issue the visiting speaker with instructions on how to engage in respectful debate. The Equality and Human Rights Commission (page 33) has outlined other examples of reasonable and proportionate restrictions.
A university may decide that it needs to postpone the talk in order to put in place a restriction that it feels addresses its concerns. It may be, for example, that a university wishes to take time to consider health and safety concerns.
A university would likely only decide that the talk couldn't go ahead if there were no other reasonable options available to address its concerns.
Deciding what is proportionate will depend on a consideration of all the circumstances and it will be for a university to adduce relevant and sufficient reasons to justify any restriction it imposes.
Fair balance is key
Fair balance is key
Restrictions on freedom of speech in universities are extremely rare and, because of that, any restriction imposed gets a lot of attention.
One of the reasons that restrictions are uncommon is because, in my opinion, almost all academics accept that the exercise of freedom of expression carries with it duties and responsibilities, one of which is to respect the equal dignity of all human beings in a democratic and pluralistic society.
In those rare cases when a university has to decide whether to restrict speech it must achieve a balance between protecting the right to freedom of expression and protecting the rights of people who are exposed to that expression.
Finding the right balance, as the case law of the European Court of Human Rights demonstrates, depends upon a consideration of all the circumstances in each case. However, central to searching for a balance must be a commitment to, on the one hand, upholding the right of each individual to freedom of expression and, on the other hand, the fair and proper treatment of minorities who may be vulnerable to the abuse of expression by those in a dominant position.
The law relating to freedom of expression and trans issues in the UK is evolving and, in some ways, is unclear. For example, guidance issued by the Equality and Human Rights Commission (page 36) states that Article 10 ECHR protects expression of the belief that women with a Gender Recognition Certificate are still men, yet a recent Employment Tribunal judgment said the opposite. It may be that, in searching for a fair balance, the context in which such a belief is expressed is crucial.
Universities, in my view, are very good at getting the balance right when it comes to freedom of expression. Universities place such high value on freedom of expression that very little speech is ever formally restricted. On those rare occasions when it is, universities know that any restriction must be proportionate, and relevant and sufficient reasons must be provided to justify it – and they usually are.
The law relating to freedom of expression and trans issues in the UK is evolving and, in some ways, is unclear. For example, guidance issued by the Equality and Human Rights Commission (page 36) states that Article 10 ECHR protects expression of the belief that women with a Gender Recognition Certificate are still men, yet a recent Employment Tribunal judgment said the opposite. It may be that, in searching for a fair balance, the context in which such a belief is expressed is crucial.
Universities, in my view, are very good at getting the balance right when it comes to freedom of expression. Universities place such high value on freedom of expression that very little speech is ever formally restricted. On those rare occasions when it is, universities know that any restriction must be proportionate, and relevant and sufficient reasons must be provided to justify it – and they usually are.
Like most everyone else, I believe in freedom of speech. Like most everyone else, I accept that freedom of speech cannot be absolute. For me, the most important thing, therefore, is that universities get the balance right. And, personally, I think they do, most of the time.
Further relevant reading- Council of Europe (2017) Protecting the right to freedom of expression under the European Convention on Human Rights.
- Equality and Human Rights Commission (2019) Freedom of expression: a guide for higher education providers and students’ unions in England and Wales.
- Joint Committee on Human Rights (2018) Freedom of speech in universities.
Key jurisprudence of the European Court of Human Rights on 'academic freedom'
- '...the Court underlines the importance of academic freedom, which comprises the academics' freedom to express freely their opinion about the institution or system in which they work and freedom to distribute knowledge and truth without restriction...' (Sorguç v Turkey, 23 June 2009 § 35)
- '...the Court has [...] stressed the importance of [academic] works [...] It is therefore consistent with the Court’s case-law to submit to careful scrutiny any restrictions on the freedom of academics to carry out research and to publish their findings.' (Aksu v Turkey [GC], 15 March 2012 § 71)
- '...academic freedom in research and in training should guarantee freedom of expression and of action, freedom to disseminate information and freedom to conduct research and distribute knowledge and truth without restriction [...] This freedom, however, 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.' (Mustafa Erdoğan and Others v Turkey, 27 May 2014 § 40)
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