The Russell Group, the collection of 24 elite UK universities, has issued an apology after grouping “gender critical” ideas alongside unlawful forms of speech in a memo to the Office for Students.
As reported by Unherd, the original memo asked that the OfS provide “examples of unlawful speech which universities would be expected to take steps to restrict, including antisemitic, Islamophobic or gender critical speech”.
This was part of a list of requests aimed at addressing “ambiguities” in the guidance and helping student groups balance free speech values and legal restrictions on speech.
But the OfS regulatory advice to which the Russell Group was responding explicitly acknowledged that gender critical views were protected speech.
Following a swift backlash online, the Russell Group walked back that portion of the memo. “We apologise for an error in our original submission to the OfS free speech consultation, which incorrectly listed ‘gender critical’ speech as an example of unlawful speech, in place of ‘transphobic’,” it claimed in an online post. “This was a genuine mistake and we have now republished our corrected summary.”
Gender critical beliefs – specifically that biological sex is real, immutable, binary and important, as opposed to hateful views towards transgender people – are considered protected speech under UK equalities law. This is the result of a court case brought by Maya Forstater, a tax expert at a think tank who was let go after tweeting that males could not change their sex, and criticising proposed changes to the Gender Recognition Act 2004 (GRA) that would allow transgender people to achieve legal recognition of their acquired gender based only on self-identification.
Ms Forstater brought claims for discrimination and victimisation against her ex-employer, and in 2021 an Employment Appeal Tribunal ultimately found that her beliefs constituted a protected philosophical belief under the Equality Act 2010. As such, gender critical beliefs are considered “worthy of respect in a democratic society”. The Employment Appeal Tribunal judgment also noted:
Just as the legal recognition of civil partnerships does not negate the right of a person to believe that marriage should only apply to heterosexual couples, becoming the acquired gender ‘for all purposes’ within the meaning of GRA does not negate a person’s right to believe, like the claimant, that as a matter of biology a trans person is still their natal sex. Both beliefs may well be profoundly offensive and even distressing to many others, but they are beliefs that are and must be tolerated in a pluralist society.
This gender critical belief set is in opposition to aspects of gender identity theory, which holds that biological sex (if it exists at all) is secondary to gender identity, that sex and gender are in effect the same, and that people are the gender they say they are, regardless of biology.
Doyle Clayton partner Peter Daly, who represented Ms Forstater throughout her litigation, has described the Employment Tribunal judgment in her case as “extremely important”.
He said: “Contrary to much commentary and speculation, this judgment establishes that the legal protection goes further than protecting the mere holding of gender critical beliefs: acts of manifesting the belief through lawful speech and action are protected. The mistaken assertion made by some that gender critical people were protected so long as they never gave voice to their belief – in effect, compelling gender critical people to remain mute – was always mistaken and is now shown to be so.
“This is therefore a judgment with broad and biting real-world implications. Employers and service providers need to understand these implications.”
