This is why ‘freedom of speech’ doesn’t mean anti-trans academics are free to spout views on ‘gender ideology’

Why freedom of speech can't always be used to defend anti-trans views

Paul Johnson, a professor and head of the department of sociology at the University of York, explains for PinkNews why ‘freedom of speech’ doesn’t mean anti-trans academics are free to spout views on ‘gender ideology’.

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’.

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’.

The law.

Freedom of speech in 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 ‘necessary in a democratic society’ – ‘necessary’ implying the existence of a ‘pressing social need’ – and any restriction should be ‘proportionate’.

‘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.

Why might a university restrict a talk of this kind and what sort of restriction could it impose?

The first issue to consider is whether there is a pressing social need to impose a restriction.

It could be argued, for example, that 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.

If we accept either or both of these examples, then we could say that a restriction on speech is necessary in a democratic society to prevent crime and/or protect the rights of others.

But what restriction should be applied? 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 has outlined other examples of reasonable restrictions. A university would only say that a 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.

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 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.

My personal view is that universities are very good at getting this balance right. 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.

The opinions within this article do not necessarily reflect the views of PinkNews.