Edinburgh Rape Crisis Centre conducted a “heresy hunt” against an employee who believes sex matters for rape victims. An employment tribunal has found it unlawfully harassed and constructively dismissed her via a disciplinary process “reminiscent of the work of Franz Kafka”.

When Roz Adams joined the Centre in 2021 she was enthusiastic about trans inclusion. She holds what the Tribunal described as “generally trans positive but also sex realist” views: that gender identity is important to some people and that they should be treated with dignity and respect, but that sometimes sex matters, particularly in a rape crisis centre.

She became gradually aware that senior management within ERCC believed that there is no such thing as biological sex, and that a person can become a woman “simply by asserting that they now identify as a woman”. These views had a significant impact on how ERCC operated.

In 2021, the Centre advertised for a new CEO, relying on a provision in the Equality Act 2010 to restrict the job to women only under sex-based occupational requirements. ERCC appointed Mridul Wadhwa, a trans woman. This caused controversy because Mridul is male, and does not have a Gender Recognition Certificate. The relevant exception would have permitted the exclusion of a trans woman even in possession of a GRC. The restriction stated by ERCC did not necessarily have that effect, but certainly purported to exclude anyone who, like Mridul, was legally male.

Many women, including rape victims, contacted ERCC to express concern. Some took issue with the fact that the centre was appointing males at all, arguing that a women-only rape crisis centre should appoint only biological females. Others were concerned with whether those who request female-only care would be granted it.

On one occasion a woman in her 60s approached the centre to take part in group work. She had kept secret for 40 years that she had been sexually assaulted and wanted to meet other survivors as part of her recovery. She asked if they could reassure her that this would be women-only. She was advised that ERCC is trans inclusive, and when she raised concerns about her need for a female-only service she was told that she was not suitable for their service.

Women who requested female-only care were turned away and there was a policy never to refer them to Beira’s Place, a rape crisis centre founded by JK Rowling which offers a female-only service. Those who wrote to ERCC about female-only care were classed as bigots and their emails were stored in a folder called “Hate emails”.

Roz Adams expressed concern internally with these policies, warning against giving ambiguous, misleading or incomplete answers to rape victims asking about the sex of their assigned counsellor.

This escalated when one of the counsellors, AB, began to identify as non-binary, accompanied with a name change to a traditionally male-sounding name. Adams and her colleagues asked for guidance about how to answer service users who wanted to know if AB was male. They were told to tell rape victims requesting female-only care that ERCC does not employ men.

Then the situation Adams warned of arose: a service user who had been assigned AB as a counsellor emailed requesting to know whether AB was a man or a woman. The Tribunal concluded that Adams was right to view this as a request for information about the biological sex of AB, not about gender identity and that she had been put in a difficult position by the refusal of her Line Manager to give her clear instructions on what was obviously always going to be a difficult situation. She forwarded the email to her manager, copying in AB and asking for guidance:

Hi Kim and [AB] I am not sure how you would want me to respond to this? Can I get some guidance? My experience is there are many different ways trans people would prefer to address this question that feel right and respectful to them whilst still answering the concerns of the SU. My instinct is to say

Hi Thanks for asking. [AB] is a woman at birth who now identifies as non binary.

What followed was a ‘completely spurious and mishandled’ disciplinary process, culminating in Adams being constructively dismissed. Her offence? Suggesting that ERCC respond to a rape victim requesting female-only care with the information she needed to consent to counselling. This was recast as a suggestion that ERCC reveal private information about AB to service users.

The Tribunal found that this was not the real reason this investigation was launched. It was a pretext for what the Tribunal described as “a heresy hunt” conducted by Mridul Wadhwa and other members of the senior management team. The belief that sex is real and that it might be important in a rape crisis centre was deemed transphobic by ERCC. The Tribunal concluded that Mridul Wadha had an agenda to “cleanse the organisation” of those who did not adhere to an institutional view which was “at the very extreme end of gender identity theory”. It concluded that “there is absolutely no need for a Rape Crisis Centre to be seen to take such a stance”.

Despite this, the Tribunal was also at pains to stress that it was not its role to choose between the rival beliefs, and said that the conflict between them “does not in any way require the law to come down on one side or other of the philosophical debate”. In one sense, this is perfectly orthodox. The Equality Act is built upon a foundation of pluralism and diversity. Tolerance of opposing viewpoints is integral to this. The Tribunal is therefore correct to note that “the law imposes a duty on both sides to tolerate each other in the workplace”.

But it is clear that the law does recognise the importance of biological sex in a whole host of contexts, but particularly in relation to sexual violence. Women have an explicit right to request single-sex intimate care and examination. Deception as to  sex can vitiate consent to sexual intercourse. The default position in common law is that sex is fixed by birth and immutable in fact, even if it may be changed in law via the Gender Recognition Act.

This judgment does not make sense if one is genuinely agnostic between what the Tribunal described as “gender identity theory” and sex realism

The correct application of the law is impossible if courts and tribunals refuse to abandon neutrality when the law requires them to. This judgment does not make sense if one is genuinely agnostic between what the Tribunal described as “gender identity theory” and sex realism. The Tribunal agreed with Naomi Cunningham, the barrister representing Roz Adams that “this is one of these cases where sex does matter in that the respondents are a Rape Crisis Centre”. That conclusion is only possible if one first accepts that there is such a thing as biological sex and that it sometimes matters. That is compatible with treating all employees with tolerance. The opposite view, in its extreme form, is not.

The version of gender identity theory embraced by ERCC (described by the Tribunal as “dogmatic”, “extreme”, and “hardline”) is one that is not compatible with the requirements of tolerance. A central feature of this worldview is that dissent is transphobic and must be quashed. The Tribunal itself found that Mridul Wadhwa believed that all sex realist views were transphobic and that firing employees with those views was important for achieving inclusivity. Those beliefs are not compatible with tolerance and, in this extreme form, may not even be worthy of protection under the Equality Act. It is not incumbent upon a court or tribunal to remain neutral between those beliefs and the beliefs of Roz Adams, described by the Tribunal as “generally trans positive but also sex realist”.

Tolerance is important, but it cannot require a court or tribunal to affect neutrality between sex realism and gender identity theory in contexts when the law requires one to notice and respect the reality of sex. This tribunal clearly did take a side. It followed the law and came down on the side of the “careful, credible and reliable witness” who was putting the needs of rape victims at the heart of her work. An extreme worldview that holds that people like Roz Adams should be hounded out of employment in the name of inclusivity is not compatible with the tolerance required of our law.