Victory in Legal Dispute With Essex University

We’ve been engaged in a protracted legal dispute with the University of Essex over its apparent reluctance to update its policies to avoid a repetition of the no-platforming of two feminist law professors. Thankfully, this has now been resolved with the University agreeing to do what it ought to have done some time ago.

Two-and-a-half years ago, Professor Jo Phoenix and Professor Rosa Freedman, both gender critical feminists, were disinvited from two separate events at the University following protests from LGBTQ+ activists who claimed that allowing them to speak would be a breach of various University policies, including one entitled ‘Harassment and Bullying: Our Zero Tolerance Approach’. Among other things, these policies set out the University’s legal duty to protect minority students from being harassed or discriminated against under the Equality Act 2010. The protestors claimed that merely allowing these two gender critical feminists on campus, even if they spoke about something entirely unrelated to trans rights, would be against the law.

This double no-platforming provoked widespread condemnation and the University commissioned the equalities barrister Akua Reindorf to review its policies. She concluded that the University was in breach of its statutory duty to ensure freedom of speech for visiting speakers, as well as its regulatory obligations, duties under charity law and – in all probability – its legal duties as set out in the Equality Act 2010. Reindorf pointedly said that the University’s policies that had been invoked to no-platform Professors Phoenix and Freedman interpreted the law “as Stonewall would prefer it to be, rather than the law as it is”. It goes without saying that Essex is a member of Stonewall’s Diversity Champions programme. (You can read a summary of Reindorf’s report here.)

The report made 28 recommendations, some of them concerning Essex’s policies which, according to Reindorf, were based on a misunderstanding of the Equality Act arising from Stonewall’s flawed legal advice. The University duly apologised to Professors Phoenix and Freedman and agreed to implement Reindorf’s recommendations – but when the LGBTQ+ activists complained that the apology made them feel ‘unsafe’, the University then issued a second apology apologising for the first, which didn’t bode well. Sure enough, it then dragged its feet over making the changes it had promised to make.

We wrote to Essex last November threatening it with a Judicial Review if it didn’t amend its policies to ensure they accurately stated the law and weren’t in breach of the University’s free speech duties. Essex wrote back, agreeing to do some of the things we’d asked, although it claimed it was intending to do them anyway, but disputing that it was legally required to comply with all our demands. We then wrote again, extracting a few more concessions… and on and on it went until, eventually, the University agreed to do more or less everything we’d asked.

Having secured this important victory, we’ve now embarked on a piece of research to determine how many other British universities are making the same mistakes as Essex – particularly those that are members of the Stonewall Diversity Champions programme. We’ve already discovered several malefactors and we intend to write to them pointing out that Essex agreed to correct these mistakes after they’d been alerted to them by Akia Reindorf and given a not-so-gentle push by us. Hopefully, they’ll also fall into line.

Bryn Harris, our Chief Legal Counsel and the mastermind behind this campaign, had the following to say:

The Free Speech Union is delighted that the University of Essex amended its policies in response to legal correspondence from us. We hope other universities will adopt this sensible approach. The Equality Act does not apply in every situation, and where it does apply it doesn’t provide carte blanche for activists to no-platform those whose views they disagree with.

This isn’t an abstract issue. Misunderstanding of the Equality Act and free speech obligations led to unfair treatment of Rosa Freedman and Jo Phoenix. This matters.

Universities need to start getting this right, or they face the likelihood of challenge by the likes of us and, in the future, regulatory intervention and even liability in damages once the Higher Education (Freedom of Speech) Bill becomes law.

The Free Speech Union plans to exert continuous pressure on universities that impose unlawful restrictions on the speech of their students, staff and visiting speakers.

An update on the case of FSU member Simon Isherwood

The case of one of our members, Simon Isherwood, was back in the news last month. Among others, the Telegraph, the Mail, GB News, Reclaim the Net and Zero Hedge reported on the Employment Tribunal hearing of the railway conductor who is suing his former employer after he was sacked when he was caught questioning “black privilege” during video-conference diversity training on “white privilege”. The session in question was attended by around 80 staff members from East Midlands Railway, West Midlands Railway and Mr Isherwood’s former company London Northwestern Railway, which is owned by West Midland Trains. At the end of the session, while staff were thanking the host, Simon accidentally left his microphone on and was overheard telling his wife: “I couldn’t be arsed because I thought, ‘You know what, I’ll just get fucking angry.’ You know what I really wanted to ask?… and I wish I had, ‘Do they have black privilege in other countries?’ So, if you’re in Ghana?…”

After an internal disciplinary probe, West Midlands Trains sacked Mr Isherwood, claiming the comments “caused offence, brought the company into disrepute and breached our equality, diversity and inclusion policy and the code of conduct”.

Speaking to the Telegraph, however, Simon pointed out that he made these comments in his home when he had a reasonable expectation of privacy. “It was a private conversation, I had no idea anyone was listening to me,” he said.

Unsurprisingly, the effect of the sacking has been devastating for Simon. “I’ve lost my job, my income, my reputation, my health is absolutely shot to pieces,” he said. “I’d worked there for 11 and a half years and never had anything but promotion, praise and awards and even now I can’t believe it.”

Simon’s hearing was on 5th and 6th May before Judge Wyeth in the Watford Employment Tribunal. As expected, Simon was an honest and compelling witness, and stood up to cross-examination with aplomb. We drafted in leading civil liberties barrister Paul Diamond to represent him. Paul has fought landmark cases in the Supreme Court and the European Court of Human Rights, and, as you might expect from someone of that caliber, was unrelenting in picking apart the holes in the other side’s evidence. He also successfully convinced the judge that the freedom of speech issues in this particular case require close attention. Indeed, it’s for that reason that the judge reserved judgment, rather than giving it extempore. The timescale is uncertain, but we hope Simon will receive the judgment this month. If Simon wins his case, the remedy hearing, where the size of his award will be decided, is scheduled for 19th September.

The FSU’s packed summer schedule

Now that we really are ‘back to normal’, the FSU has great pleasure in unveiling our packed programme of summer events. We have two Online Speakeasies coming up: How Woke Won with Dr Joanna Williams on Wednesday 15th June and Trans – When Ideology Hits Reality with Helen Joyce on Tuesday 12th July. If you are a member, look out for emails inviting you to register so that you can receive the Zoom links.

In addition, we’re launching a series of Regional Speakeasies. Some of you may have already come along to our in-person meet-ups in pubs and bars, where members can socialise while exploring free speech issues. During late June and July, Regional Speakeasies will be happening in Birmingham, Brighton, Cambridge, Cardiff, Edinburgh, Manchester and Oxford. Dates and details will be emailed to all members next week, with links to register on Eventbrite. Members are welcome to bring guests, particularly those likely to join the FSU!

London members, many of whom came to our packed meet-up in March, are encouraged to get tickets to our Summer Special Comedy Night on Wednesday 29 June, where there will be plenty of opportunities to meet other members and the FSU’s staff. This extravaganza of comedy and music is being held in association with Comedy Unleashed – the home of free-thinking comedy. The MC for the night will be FSU favourite Dominic Frisby – who you can watch talking about the event here – and Dominic will also be performing a special set of comedy hits with his band the Gilets Jaunes. Also on the bill is comedy crooner and ubermeister of lounge, Frank Sanazi, described in Chortle as “the extravagantly offensive love-child of Adolf Hitler and Frank Sinatra”. Frank will be accompanied by his legendary friends Dean Stalin, Spliff Richard and Tom Mones. As this event is also a fund-raiser it is open to the public – you can get your tickets here.

You can see all our upcoming events on our new Events page and get tickets to some events, such as the London comedy night. If you’re not yet a member, take a look and find out what you are missing or if are a member it’s a good way of persuading a friend to join.

Academic removed from academic event for “disruptive” questions

Dr Jon Pike is a member of the FSU. He’s also a Senior Lecturer in Philosophy at the Open University. His specialism is the philosophy and ethics of sport, and he’s also a global expert in issues surrounding transgender inclusion in women’s sport. On 16th May Dr Pike attended an online event at Loughborough University entitled ‘IAS Festival of Ideas: Transitions – Festival and Book Launch Gender Diversity and Sport: Interdisciplinary perspectives on increasing inclusivity’. This topic was well within the parameters of his research and expertise, but he was removed from the event for asking questions about the fairness of allowing biological men to compete against female athletes. Dr Pike later received a terse email from Loughborough University’s Institute of Advanced Studies informing him that his removal had been necessary “due to the disruptive nature of [his] questioning”. The Free Speech Union has written to Loughborough University’s Vice Chancellor, Professor Nick Jennings, to express its concern. We think this to be a failure of the University to discharge its duty to uphold free speech on campus, and an act of discrimination against Dr Pike on the grounds of his gender critical beliefs. The full text of the FSU’s letter is available here. We are currently awaiting the University’s response.

Douglas Murray Speakeasy best attended yet

Last month’s Speakeasy with FSU Director and best-selling author Douglas Murray was attended by over 500 members, making it the most popular one we’ve held so far. After a short interview with me, Douglas answered questions from our members about his new book The War on the West. You can watch the whole thing on our YouTube channel here. And don’t forget to subscribe – once we’ve reached a certain number of subscribers we can start selling ads on the channel.

NCHIs – a request for members in Greater London to get in touch

As many of you will know, in December of last year, the former police officer Harry Miller won a landmark legal battle against the recording of NCHIs, and the College of Policing guidelines were ruled unlawful. The Free Speech Union was proud to back Harry in that case. Had he lost and had to pay the other side’s costs, we’d pledged to help with that bill. There is, however, plenty of work for the FSU to do. That’s because police forces in England and Wales aren’t required to notify someone if an NCHI is recorded against their name – and for all we know, the police are continuing to log ‘non crimes’ in the same way. Given that an estimated 250,000 NCHIs have been recorded since 2014, it’s likely that hundreds of thousands of people still unwittingly carry one around on their records.

At the moment we’re really keen for members to come forward if they’ve been given an NCHI from the Metropolitan Police, or if they think they might have been. The Met’s jurisdiction, by the way, covers the 32 boroughs within Greater London, excluding the City of London. You can find a map here.

So please do ask around friends, colleagues and family members. You can reach our case team on [email protected], or drop us an initial direct message via our Twitter page (@SpeechUnion), our Facebook page (@SpeechUnion), our LinkedIn page (Free Speech Union) or our Instagram page (@FreeSpeechUnion). Of course, if you think you might have received an NCHI from a force other than the Met, then do also get in touch via the same channels. The FSU’s FAQs on how to find out if you have an NCHI recorded against your name is here.

Forcing children to use the preferred gender pronouns of their classmates is against the law

In the US, the Foundation Against Intolerance & Racism (FAIR) has written to the principal of a Middle School in Wisconsin in response to an ‘incident report’ submitted through their transparency website (which you can access here). The details are scarcely believable:

A Wisconsin school district has filed sexual harassment complaints against three middle schoolers for calling a trans classmate by the wrong gender pronoun. The school district in Kiel has charged the three eight-graders at the Kiel Middle School with sexual harassment after an incident in April in which the students refused to use “they” to refer to a classmate who had switched pronouns a month before the alleged incident.

As FAIR concede, “it may be polite for students to use the preferred pronouns of their classmates”, but in the US, “punishing them if they do not” is to “disregard their First Amendment rights”.

Just as forcing American schoolchildren to use the preferred gender pronouns of their trans classmates would be a breach of their First Amendment rights, so forcing British schoolchildren to do likewise would be unlawful under Article 10 of the European Convention on Human Rights – or so we believe. If any of our members have children (or grandchildren) who are being forced to do this – not asked to do it because it’s polite, but threatened with a punishment if they don’t – please get in touch. We would be happy to write to the school in question pointing out that insisting on this is probably unlawful.

General fighting fund

This month we’ve helped people from all walks of life, with cases ranging from people being kicked off social media for questioning trans ideology, to members losing their jobs and livelihoods for comments made outside of work. People contact us every week who never imagined they’d need our support. Help us to help them: if you can, please donate to our general fighting fund.

Sharing the newsletter

As with all our work, this newsletter depends on the support of our members and donors, so if you’re not already a paying member please sign up today or encourage a friend to join, and help us turn the tide against cancel culture. You can share our newsletters on social media with the buttons below to help us spread the word. If someone has shared this newsletter with you and you’d like to join the FSU, you can find our website here.

Kind regards,

Toby Young