Sussex calls OfS fine ‘irrational’ as High Court case begins

The University of Sussex is set to begin its High Court legal challenge to a £585,000 fine imposed by the Office for Students (OfS) for failing to uphold free speech.

Nearly 10 months after the south-coast institution was handed a record fine for academic freedom breaches, lawyers for Sussex will begin a three-day judicial review hearing at the Royal Courts of Justice on 3 February.

The OfS began its investigation with the case of Kathleen Stock, a philosophy professor who left the university in 2021 after she was targeted by protests claiming her views on sex and gender were transphobic. The eventual fine in March 2025 did not, however, centre on Stock’s treatment and focused on university policies that required course materials to “positively represent trans people and trans lives”.

Having announced its intention to appeal the fine in May, claiming the OfS had pursued a “vindictive and unreasonable campaign against it”, Sussex was later granted leave to appeal the decision on six grounds.

With the case likely to be watched with interest by other English universities amid concerns of “overreach” by the OfS, Sussex claims the final decision against it was “ultra vires, wrong in law, irrational and procedurally unfair”, according to legal documents.

In particular, the university will argue the OfS was wrong to penalise its Trans and Non-Binary Equality Policy Statement because the watchdog is only permitted to scrutinise “governing documents” of an institution under the remit of the Higher Education and Research Act 2017.

“A policy statement relating to the treatment of a specific group of staff and students is not a governing document of the university,” it argues, claiming that breaching the “lower-level policy statement” would not lead to an academic losing their job or privileges given existing freedom of speech protections guaranteed by the university’s statutes.

The OfS was not legally allowed to impose a fine because Sussex is an exempt charity established by a royal charter, Sussex also argues. Only the King has the power to rule if the university has breached any of its rules.

Furthermore, Sussex claims the OfS is wrong to contend that universities cannot impose any restriction on speech unless it amounts to a civil wrong or criminal offence. Universities are permitted to impose restrictions that are “necessary and proportionate for the purposes of legitimate aims such as maintaining order and academic standards within the university”, it claims.

The OfS judgment was also procedurally unfair, Sussex claims, as the offending 2018 Trans, Non-Binary Equality Policy Statement, which states “transphobic abuse, harassment or bullying (name-calling/derogatory jokes, unacceptable or unwanted behaviour, intrusive questions) are serious disciplinary offences for staff and students”, was changed in December 2022 after the OfS flagged its concerns. The policy was again changed in 2023.

The university further claims it requested to meet with investigators nine times during the three-and-a-half year investigation but each time was denied this opportunity. In contrast, the OfS took two witness statements from Stock.

Given other universities have similar policies on trans representation, the OfS had “unfairly singled out the university for investigation and punishment, without dialogue or discussion, when other universities operating similar or identical policies to the [equality policy] have been offered a process of open dialogue and discussion to remedy the flaws in their policies”, it says.

Abhishek Saha, a founder member of the London Universities Council for Academic Freedom, said the case’s outcome would have “repercussions far beyond this affair”.

“If the judge rules in Sussex’s favour on the interpretation of [governing documents], it would effectively kill the OfS’s ability to apply condition E1,” he said, referring to the conditions that require institutions to reflect upon public interest principles, such as free speech.