University of Sussex judicial review into OfS freedom of speech decision: Legal comment

The University of Sussex has launched a High Court challenge against the Office for Students’ (OfS) decision to issue a £585,000 fine. 

The regulator issued the fine after making an assessment that Sussex has breached conditions of registration in its governance and policy arrangements related to diversity, equity and inclusion, freedom of speech and academic freedom. 

The regulatory action came in the wake of Kathleen Stock’s resignation in 2021 and events on campus related to the expression of gender-critical and gender-affirmative views. 

The university argues the OfS was wrong to penalise its Trans and Non-Binary Equality Policy Statement when issuing the fine in March 2025. It claims the watchdog is only permitted to scrutinise “governing documents” of an institution under the remit of the Higher Education and Research Act 2017. 

Trish D’Souza, Legal Director in the education team at UK and Ireland law firm Browne Jacobson, said: “The University of Sussex has announced it is taking legal action against the OfS, launching a judicial review to contest the regulator’s decision-making process in imposing a £585,000 fine. The penalty was issued after Sussex adopted a transgender policy which, according to the OfS, failed to uphold freedom of speech and academic freedom, as well as failings in the university’s management and governance processes.

“The university argues that the OfS exceeded its powers – acting ultra vires – by scrutinising a policy it claims does not form part of its official governing documents and therefore should not have been considered when the fine was imposed. Sussex also contends the OfS acted irrationally or unreasonably by singling out its policy, which it considers is similar to those at other higher education institutions.

“For the case to proceed to a full hearing, Sussex must first demonstrate it has an arguable case. The court may consider whether a transgender policy can be regarded as part of a provider’s governing documents should be explored in a public hearing. 

“Should Sussex succeed at the substantive hearing, the court could quash the OfS’s decision, forcing the regulator to reconsider the fine based on a narrower interpretation of what it constitutes governing documents.”