The OfS v University of Sussex: a line in the sand on free speech and academic freedom?

In March 2025, the Office for Students (OfS) fined the University of Sussex £585,000 after concluding that the university had breached its regulatory duties on freedom of speech and governance. The decision followed a three-and-a-half-year investigation and centred on an internal policy: the university’s Trans and Non-Binary Equality Policy Statement (TNBEPS).

What followed is one of the most significant legal challenges yet to the OfS’s powers and approach. Sussex has now asked the High Court to step in, arguing that the regulator overreached its authority, misapplied the law, and conducted an unfair investigation. At stake is not just one fine, but fundamental questions about who governs universities, how free speech is protected in practice, and how far the regulator can go when policing campus culture.

Background

The OfS was created by the Higher Education and Research Act 2017 (HERA) as the regulator of higher education providers in England. To remain registered—and therefore eligible for public funding and student loans—universities must comply with a set of ongoing conditions.

Two of those conditions are relevant here:

• Condition E1, the “public interest governance condition”, which requires a university’s governing documents to be consistent with a list of public interest governance principles, including academic freedom and free speech.
• Condition E2(i), which concerns compliance with a provider’s own internal governance arrangements.

In 2021, following high-profile protests involving academic Kathleen Stock, the OfS opened an investigation into Sussex. Its eventual conclusion was stark: three versions of the TNBEPS (from 2018, 2022 and 2023) unlawfully restricted freedom of speech and academic freedom, exposing staff to disciplinary risk for lawful expression. On that basis, the OfS imposed a record financial penalty. The university disputes almost every aspect of that conclusion.

The TNBEPS is a policy statement intended to promote fair and equal treatment of trans and non-binary students and staff. It sits alongside a much larger framework of university regulations, including disciplinary rules, a statutory freedom of speech code, and contractual protections for academic freedom.

Importantly, Sussex says no member of staff has ever been disciplined for lawful expression of gender-critical beliefs. The policy, the university argues, was never applied in the way the OfS claims to fear.

Over time, Sussex revised the TNBEPS to add clarity and explicit safeguards for free speech. By 2023. and again in 2024, the policy expressly stated that nothing in it could justify sanctioning staff for questioning received wisdom or expressing controversial views within the law. The OfS nonetheless maintained that earlier versions were unlawful.

The judicial review

Sussex’s judicial review case in the High Court rests on various grounds.

1. Did the OfS act beyond its powers?

The university’s first argument is structural and constitutional. Under HERA, the OfS can regulate governing documents. For a university established by Royal Charter—like Sussex—those documents are the Charter and Statutes, not ordinary policy statements (such as TNBEPS).

The OfS, however, has defined “governing documents” extremely broadly in its Regulatory Framework, sweeping in policies that describe values or touch on decision-making. Sussex argues this definition is unlawful because it expands the regulator’s reach beyond what Parliament authorised. TNBEPS, the university says, simply is not a governing document.

Closely related is a second, more historic point: visitorial jurisdiction. As a chartered university and exempt charity, Sussex is subject to the King as its Visitor. For centuries, visitors have had exclusive authority to interpret and enforce a university’s internal laws, unless Parliament clearly says otherwise.

Sussex argues Parliament has not displaced that jurisdiction in HERA. The OfS therefore had no power to rule on whether the university breached its own internal scheme of delegation—yet that is precisely what the OfS did.

2. Did the OfS get the law wrong?

Even if the OfS had jurisdiction, Sussex says it fundamentally misinterpreted the law on freedom of speech.

Condition E1 requires universities to take “reasonably practicable” steps to secure “freedom of speech within the law”. According to Sussex, the OfS treated this as an absolute prohibition on any restriction of speech unless it amounted to a criminal offence or civil wrong.

That, the university argues, is legally incoherent. Freedom of expression under Article 10 of the European Convention on Human Rights allows proportionate restrictions to pursue legitimate aims—such as preventing harassment or maintaining academic standards. A university policy could be fully compliant with human rights law yet, on the OfS’s logic, still be unlawful.

Sussex also points out an inconsistency: under the Higher Education (Freedom of Speech) Act 2023, the OfS accepts that “freedom of speech within the law” mirrors Article 10. But in this case, it adopted a far more rigid interpretation.

The university further argues that the OfS misread the TNBEPS itself. Properly interpreted, the policy could not have led to disciplinary action against staff for protected speech. The regulator’s conclusions, Sussex says, were irrational.

3. Was the process fair?

Perhaps the most striking aspect of the case is the critique of how the investigation was conducted.

Over three and a half years, Sussex says it repeatedly asked to meet the OfS to discuss substantive concerns. The regulator, Sussex says, refused or ignored those requests and interviewed no one from the university. Instead, it relied heavily on witness statements from a single external figure, taken in circumstances the university says were opaque and undisclosed.

Further, Sussex says, much of the evidence was not shared with it before the final decision. By at least April 2023, the university argues, the OfS had stopped investigating neutrally and had begun defending a predetermined position.

Sussex also alleges unequal treatment. Other universities with similar policies, it says, were offered dialogue and an opportunity to make changes. Sussex alone, it says, was subjected to prolonged investigation and punishment.

Together, these factors, the university argues, amount to procedural unfairness and give rise to an appearance of bias.

Why this case matters

This judicial review is not just about one policy or one fine. It goes to the heart of how higher education is regulated in England.

If Sussex is right, the OfS has dramatically expanded its remit without parliamentary authority, blurred the boundary between governance and day-to-day policy, and adopted an approach to the definition of free speech that is stricter than the law itself requires. It also raises uncomfortable questions about transparency, consistency, and proportionality in regulatory enforcement.

If the OfS is right, then universities may face far closer scrutiny of internal policies—and far less room to balance equality, dignity, and expression—than many assumed.

Either way, the case will shape the future relationship between universities and their regulator. For now, Sussex is asking the court to step in quickly, citing the ongoing reputational and financial harm caused by the decision.

The judgment, when it comes, is likely to be one of the most important higher education law rulings in years.