Between May and September 2023, the Research Centre for Museums and Galleries (RCMG) at the University of Leicester drew together a small team to generate Trans-Inclusive Culture: Guidance on Advancing Trans Inclusion for Museums, Galleries, Archives and Heritage Organisations. The initiative emerged in response to a climate of growing hostility towards trans people and requests from heritage, arts and cultural organisations for support of their ambitions to advance trans inclusion.
Over the past two years, a few high-profile employment tribunals have generated case law which has meant that “gender-critical” beliefs – “broadly speaking, the belief that sex is biologically determined, binary and immutable”, write Sharon Cowan, of the University of Edinburgh, and independent researcher Sean Morris in a 2022 paper – alongside other beliefs, are now protected under the Equality Act. For those working in cultural organisations that are committed to creating and maintaining inclusive, safe environments for trans people, a changing legal landscape and a highly charged public discourse surrounding trans rights have contributed to growing wariness in advancing trans inclusion.
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The need for clear, practical advice became more apparent last summer, with challenges to trans inclusion playing out publicly at several UK museums. Following its launch on 7 September, the guidance has attracted a level of interest and support that far exceeded our expectations; more than 6,400 people accessed the guidance in its first four months.
Developed with legal scholars and ethics, trans-inclusion and equality experts – and building on a survey of sector needs – the guidance, funded via the Economic and Social Research Council, has multiple aims. It explains key components of the UK law; sets out an ethical framework to support cultural organisations to advance trans inclusion; and uses scenarios to illustrate how cultural organisations can use the guidance. The actions and strategies in the guidance enable staff, volunteers, freelancers, managers and trustees to work together to positively impact the experiences of trans individuals and communities.
How UK universities are navigating the Higher Education (Freedom of Speech) Act 2023
As we write this article, UK universities are exploring strategies and solutions to navigate the additional complexities that the Freedom of Speech Act introduces for them. The Higher Education (Freedom of Speech) Act 2023 became law in May 2023, placing new duties on higher education institutions (HEIs) and students’ unions to protect freedom of speech and academic freedom in higher education. Although not yet fully in force, the act has generated considerable debate and anxiety among HEIs, with particular attention given to tensions – real or perceived – between free speech and protection from discrimination.
The law makes clear that free speech in university contexts must include the right to express views that some may find controversial or offensive, so long as the views and opinions are not expressed in a way that “results in harassment or subjects students to discrimination or other detriment” (Equality and Human Rights Commission). The reassertion of the point that we each have a right to hold and express our beliefs and must expect and value a diversity of beliefs among staff and students has generated considerable discussion around non-conflictual debate and tolerance. Universities are working hard to understand where (lawful) freedom of speech and the expression of belief might tip into (unlawful) discrimination or harassment. Perhaps unsurprisingly, the issues of free speech around gender-critical views and the protection from harassment of trans staff and students is a topic that has animated debates.
Some see huge incompatibility between free speech and protection from discrimination, and others argue that they can be equally important and reconciled. In his first speech in his role as director of freedom of speech at the Office for Students, Arif Ahmed stated: “We do not think that merely offensive speech, at any rate in an academic context, comes anywhere near contravention of the broader duties and prohibitions under the Equality Act.”
Of course, whether the expression of an offensive view amounts to harassment or not is context specific and for the courts to decide on a case-by-case basis. However, stating that offensive speech in universities is far from unlawful puts the emphasis solely on the question of what is legally permissible, rather than on the equally important question of what kinds of campus communities we want to build.
Advice for universities on supporting trans inclusion
Our research and experience, exploring these issues in the cultural sector, have shown that community and culture building may be a more productive approach for universities to take. This would involve proactively encouraging people to reflect, with due care and attention, on how they can express their beliefs in ways that do not undermine the dignity and respect of those who have a right to study and work in a safe and respectful environment and on fostering good relations among members of the university community to create an inclusive culture for all.
To enable freedom of speech where a diversity of views can flourish and, at the same time, ensure that all students and staff feel safe and secure, universities will need to work even harder in advancing inclusion for everyone and, in particular, for disadvantaged and oppressed groups. Contrary to some received wisdom, it is not discriminatory to advance trans inclusion alongside and as part of a wider programme of equality, diversity and inclusion initiatives. At the present time, this is more important than ever.
This means that, rather than muting themselves on trans inclusion and pulling back on initiatives that support trans equality, universities need to put significant effort into advancing trans inclusion (alongside their other inclusion work), ensuring that they are inclusive spaces where trans staff and students can feel safe and supported. We must defend our commitments to create places where people can not only encounter diverse views, but where freedom of speech is nested within a safe space; where staff and students can thrive without their very existence and rights to dignity and respect being undermined or opened to question.
Suzanne MacLeod and Richard Sandell are professors of museum studies and co-directors of the Research Centre for Museums and Galleries, both in the School of Museum Studies at the University of Leicester. Sharon Cowan is professor of feminist and queer legal studies at the University of Edinburgh School of Law. E-J Scott is senior lecturer at Central Saint Martins, University of the Arts London and curator and founder of the Museum of Transology.
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