Over the last two years an intense debate has broken out about how sex and gender identity should be defined in law and policy, or what it means to be a man or a woman.
This has been playing out in the courts, which have recently heard two high-profile cases (Harry Miller v College of Policing and Forstater v Centre for Global Development in which the employment judge ruled against the plaintiff), both testing whether it is legitimate speech to assert that biological sex is immutable (in other words, that a person cannot change sex) or, if such views fall outside the bounds of the acceptable. Both cases have profound implications for freedom of speech and the legal protections afforded to those who do not share a belief in innate gender identity.
In the UK the same issue is playing out on university campuses, at times in ways that depart from established academic standards of evidence, analysis and discourse. Here once again the courts now appear likely to become involved, with the launch this week of a campaign to uphold academic freedom of speech to discuss sex and gender (the authors of this blog are supporters of this campaign).
Here we look at the main arguments underpinning the sex and gender identity debate, the impact on universities, and the steps that university managers might take to support academic freedom in what can sometimes feel like a fraught and restrictive climate.
Understanding the debate on sex and gender
The key conflict in the sex and gender identity debate is between a view of transgender rights as based on a person’s beliefs about their gender identity and women’s rights as based on their biological sex.
From one perspective, the key line of argument is that a person who identifies with a gender that differs to their sex should be treated in line with the gender with which they identify, with access to female or male single-sex spaces and services respectively. This is underpinned by the idea that everyone has an innate gender identity, and for trans people, this identity is not aligned with their sex as recorded at birth. It should be noted, however, that the trans population is not homogeneous, and that other views are expressed.
The fundamental argument underpinning the sex-based rights perspective is that the physical, economic and social consequences of being born female are so significant that women require specific protections in law and policy for reasons of safety, privacy, dignity or fairness, including single-sex services and spaces. This view was reflected in the Sex Discrimination Act 1975, which stated clearly that it was concerned with discrimination against a woman “on the ground of her sex” and defined a woman as a female of any age. This definition was then carried forward to the Equality Act 2010, under which ‘sex’ is a protected characteristic.
The challenge for universities comes from the belief of some advocates of the first position that conceptualising sex as a physical/biological category which remains at all relevant to policy and law, including as the basis for any legal rights, should be treated as being in same category as holding and promoting racist or homophobic views. Arguments which do not start from accepting as a fundamental truth the proposition that gender identity is an innate universal property which supersedes physical sex are held to be outside what should be permissible for discussion or study within the university.
Against this background, proposing that law and policy should continue to recognise physical sex in certain contexts, or that data should still be collected on physical sex as well as identity, has been condemned as unacceptable bigotry. In consequence, disruptive action is seen as justified to prevent such views being expressed by staff or students, and those who express such views are viewed as the legitimate targets of very derogatory descriptions.
Impact on academic freedom
Within universities, the heated nature of the debate on sex and gender identity is affecting the ability and confidence of researchers and students to freely engage in intellectual debate in several ways. Most evidently, discussion on women’s sex-based rights has been subject to disruption and defamatory comment.
In some cases, this has led to events being postponed or cancelled, as has happened within recent weeks at Oxford Brookes, Edinburgh and Essex. Less noticeably, research, discussion or events on sex-based rights have simply not taken place, by dint of self-censorship. In relation to events, this may be due to practical hurdles, such as the need to plan for additional security and deal with spam bookings. There is also the psychological stress: the anticipation that an event or discussion on sex-based rights will be met by hostile social media and abusive commentary. Activists have campaigned for the dismissal of female academics who do not share a belief in innate identity. At the University of Oxford, feminist historian Professor Selina Todd has required security at her lectures. Some women have been threatened (ourselves included), while outwith the academy women have lost their jobs for speaking out on this issue (see here and here). In the past week or so, a philosophy publication has been pulled because of objections to two of the authors, both of whom have been subject to other attempts to restrict their academic activities. Earlier this year, the editor of an academic journal was the focus of a campaign for her removal, because of her work in this area.
The upshot is that some academics are bypassing important social issues that, in ordinary times, would be subject to rigorous discussion. These include questions about power and inequality, the reliability of population data and other statistics, the balance of rights between different vulnerable groups, as well as wider societal shifts on gender identity, such as the unexplained sharp increase in referrals to gender identity services by young girls.
This situation raises urgent questions as to how universities should respond to and manage the evident tension between different groups and viewpoints, and facilitate academic freedom.
Academic freedom and balancing rights
Guidance on freedom of expression for Scottish Higher Education published by the Equality and Human Rights Commission (EHRC) provides a clear set of principles or framework for approaching the debate on sex and gender identity. Similar guidance has been published for England and Wales, which have separate legislation. Asserting that ‘freedom of expression is a key part of the higher education experience’ and that ‘sharing ideas freely is crucial for learning and allows students to think critically, challenge and engage with different perspectives’, the EHRC set out five core ideas aimed at upholding academic freedom:
- Everyone has the right to free speech within the law.
- Higher education should always work to widen debate and challenge, never to narrow it.
- Any decision around speakers and events should seek to promote and protect the right to freedom of expression.
- Peaceful protest is itself a protected form of expression; however, protest should not be allowed to shut down debate or infringe the rights of others.
- Freedom of expression should not be abused for the purpose of unchallenged hatred or bigotry. Providers of higher education should always aim to encourage balanced and respectful debate.
Further to these core ideas, the EHRC states that ‘everyone has the right to express and receive views and opinions, including those that may ‘offend, shock or disturb others’ (p.6.). In a similar vein, in Miller v College of Policing, Mr Justice Knowles recently stated:
We live in a pluralistic society where none of us has a right to be offended by something that they hear. Freedom of expression laws are not there to protect statements such as ‘kittens are cute’ – but they are there to protect unpleasant things. Its utility lies in exposing people to things that they do not want to hear.
In Scotland, under s26 of the Further and Higher Education (Scotland) Act 2005 (“Academic Freedom”), universities and colleges must aim to uphold (so far as they consider reasonable) the academic freedom of teachers and researchers they employ, and ensure (again, so far as they consider reasonable) that this is not adversely affected. “Academic freedom” is defined as including the freedom within the law to hold and express opinions, question and test established ideas or received wisdom, develop and advance new ideas or innovative proposals, and present controversial or unpopular points of view. Separate legislation governs academic freedom in other parts of the UK.
Universities are also bound by the Public Sector Equality Duty, which legally requires higher education providers to assess how their policies impact on all nine protected characteristics, and to foster good relationships between those with different protected characteristics.
A recent report by the Westminster Joint Committee on Human Rights on freedom of speech at universities was careful to say that problems ‘should not be exaggerated, going on to say that:
Where it happens, it is a serious problem and it is wrong. But it is not a pervasive problem. The evidence we have taken shows that overall there is support for the principle of freedom of speech among the student population. But even though much of the concern about free speech appears to have come from a small number of incidents which have been widely reported (and those reports are often repeated), any interference with free speech rights in universities is unacceptable and we are concerned that such interference as has been reported could be having a “chilling effect” on the exercise of freedom of speech more widely.
Putting principles into practice
The challenge for universities is in translating these ideas and principles into practice. Clearly, universities should be trans inclusive and non-discriminatory. This does not, however, mean that institutions are obliged to replace policies based on the protected characteristic of sex with those based on gender identity. Instead, universities need to develop ways to balance competing interests between different groups. In particular, managers need to ensure that the differing views are fairly represented, and avoid the situation where only one narrative or position can be expressed (for example, by dint of groups taking a ‘no debate’ position).
To this aim, we think, first, that managers need to address any deliberate attempts to prevent legitimate academic activity and establish the boundaries of acceptable protest, with reference to the EHRC guidance and legislation noted above. We know from our own contacts and experiences that some female academics are reluctant to take part in this debate, due to the hostility and backlash seen in some places. Without both reactive and proactive steps to facilitate discussion on what is a substantive contemporary social issue, it follows that universities will not be able to uphold their commitment to academic freedom.
Second, where such provisions are not in place already, universities should facilitate representation for female staff and students, as provided for under the Equality Act 2010 (schedule 16, Single characteristic associations). It is worth noting here that the University of Edinburgh employs around 8,500 female academic and non-academic staff, which is over half of the total workforce. Without adequate representation, universities risk losing sight of women’s rights in the same way that other public organisations already have. Relatedly, universities need to consult on policies more widely, to include representatives from all affected groups.
Finding ways to balance the two positions will need a nuanced, evidence-based approach that recognises both sex and self-declared gender identity may be relevant to people’s lives. For those they employ and teach, universities should have policies which seek to redress inequalities arising from both biological sex and self-declared identity, and ensure that the interests of both women and those with transgender identities are fairly represented and protected. But more than that, universities as places of teaching and research should foster an environment where the often sensitive and contested issues which arise from this debate can be properly examined and debated.
Equality and Human Rights Commission (EHRC) (2019) Freedom of expression: a guide for higher education providers and students’ unions in Scotland.
Guardian (2018) UK universities struggle to deal with ‘toxic’ trans rights row.
Murray, K. and Hunter Blackburn, L. (2019) Losing sight of women’s rights: The unregulated introduction of Gender Self-Identification as a case study of policy capture In Scotland.
Main image by K Donovan 11 CC BY 2.0