Thread by @akuareindorf

This report is an interesting contribution to the debate on free speech in higher education. There’s quite a lot I disagree with – a few initial thoughts in 🧵⬇️. For more lively debate on this subject don’t forget to sign up for the @officestudents #OfSInsight event next week!

https://twitter.com/Daragh_Murray/status/1600441151441768451

Link here:

https://twitter.com/officestudents/status/1589543482451902471?s=20&t=jQ5BxfGSW0M5Grdy6gJFiA

My thoughts on the report (first reading):
1. The report has a lot of useful and important information about the rights of protestors to freedom of expression. This is certainly an area that higher education institutions must pay attention to. However…

2. The report says (p5) that the law protects employees from disciplinary action because of their opinions, but that this protection “does not apply to actions (manifestations of such beliefs)”. This is wrong. Art 9.2 ECHR expressly protects manifestation of belief:

3a. The report gives a definition of “gender critical” (fn3) taken from the OED, and comments that “in practice” the label is “used by people who campaign against the extension of legal right [sic] for trans people, or for the rolling back of existing legal rights”.

3b. Neither of these definitions is helpful if the intention (as stated) is to tell people what their legal rights & responsibilities are. The definition of gender critical belief that has been found to be protected by law is clearly stated in Forstater v CGD:

4. The report says (§31) that the effect of Art 14 ECHR is that free speech must not take a discriminatory form. I don’t understand this at all. Art 14 says that Convention rights must be *enjoyed* without discrimination, not that they must be *exercised* without discrimination.

5. §42 says that the Higher Education (Freedom of Speech) Bill will only safeguard the academic freedom of staff “within their field of expertise”. This is not the case – that phrase was removed from the Bill in Spring of this year. The premise of §43 is therefore wrong.

6a. §70 says that “people holding anti-trans opinions” are protected by law (if cogent). However it’s not “anti-trans” opinions that are protected – it’s gender critical beliefs, as defined in Forstater. This conflation of GC & ‘anti-trans’ is confusing and misleading.

6b. Eg §§75-6 comments on EHRC guidance which says it is lawful to hold the view that transwomen with GRCs are still men. The report curiously extrapolates from that that the EHRC is saying that “all anti-trans speech is always, by definition, permitted under Article 10”.

7a. §74 says a uni can “adopt” – and thus be liable for – harassment by an external speaker if it refuses to cancel the speaker’s talk because of “a policy decision to always prioritise free expression over the demands of its trans & pro-trans [members]”.

7b. This is wrong. There’s no vicarious liability for 3rd party harassment. The only liability for the uni would be if its refusal to cancel the talk was *because of* the protected characteristic of the affected person(s). This would be a discrete act of direct discrimination.

8. §96 suggests that harassment under the EqA is conduct which is done “because of” a protected characteristic. The statutory test is not “because of” – it is “related to”. This is a basic but important error.

9. Those are some of my preliminary thoughts. There’s a lot to be said on this subject, and a lot yet to be done to help higher ed institutions find the right balance. A very erudite analysis of the relevant law by @jamesmurray88 can be found here:

https://twitter.com/jamesmurray88/status/1550765418217889795?s=20&t=jQ5BxfGSW0M5Grdy6gJFiA