Picture credit: Women's Place UK
Artillery Row

A Phoenix rises

Professor Jo Phoenix’s legal triumph is also a triumph for free speech

A former Professor of Criminology at the Open University (OU) has become the latest in a series of gender critical feminists (i.e., feminists who believe sex is biological, immutable and should take precedence over gender identity in policy and in law) to win employment tribunals.

Professor Jo Phoenix, who established the OU’s Gender Critical Research Network (GCRN), has won her unfair dismissal claim against the institution. In its ruling, the tribunal also found that she suffered victimisation and harassment, as well as direct discrimination.

The OU’s failure to protect Professor Phoenix from harassment from colleagues and trans activists was, the panel’s ruling found, motivated by “fear of being seen to support gender-critical beliefs” and “fear of the pro gender identity section” of the university.

As confirmed by the evidence of one of the OU’s witnesses, Professor Ian Fribbance, “there was more of a gender affirmative [rather than gender critical] culture in the OU”. Specifically in relation to Prof Phoenix’s Social Policy and Criminology (SPC) Department, the panel also determined that “there was a majority of [gender] affirmative supporters”, and that “those who were neutral in the Department would be more likely to take their steer” from senior members of staff who were “on the gender affirmative side”.

Tensions first emerged at the OU in 2018 after Professor Phoenix and 53 other academics signed a letter to The Guardian newspaper raising concerns about the introduction of self-ID for trans people wanting to undergo gender reassignment.

This caused disquiet among some of her SPC colleagues, particularly the following trio, whose names feature with grim regularity throughout the ruling: senior lecturer and transgender academic lead for EDI Dr Leigh Downes, Head of Subject Prof Louise Westmarland, and Head of Department Dr Deborah Drake, all of whom were found by the tribunal to be “supportive and/or sympathetic to gender identity views rather than gender critical views”.

Around the time that The Guardian letter was published, Dr Downes took it upon themselves to email all staff in the SPC portraying opposition to self-ID as “anti-trans” and associated with the “far-Right”. Another colleague, Dr Christopher Williams, intimated to a female lecturer in the OU’s Graduate School that he found Professor Phoenix’s involvement with the letter so concerning, “that he would talk to the OU’s LGBT centre with a view to getting an injunction” to stop her undertaking research “on children and transgenderism”. Was she planning to undertake such research? Er, no. “There was no evidence that [Prof Phoenix] was doing or planning to do any research into transgenderism in children,” the tribunal found, adding that in making this statement: “Dr Williams was displaying an irrational fear and was hostile to the Claimant because she had gender critical beliefs”.

When Professor Phoenix subsequently gave a talk at a Woman’s Place UK event in 2019 on the topic of trans rights, sex-based rights and the curtailment of academic freedom, more departmental pearl-clutching ensued. “I can hardly bear to open it,” quavered one staff member, having been emailed a link to the “video nasty” by another colleague.

Dr Downes also fired off an email to Prof Westmarland, complaining: “I watched it yesterday and had to take a walk. I found it very upsetting. Been a while since I cried at work.” The panel were distinctly unimpressed by that claim: “We considered the transcript of the talk,” the ruling states immediately after Dr Downes’ complaint is reproduced, “and there is nothing in the talk that we find that would be upsetting.” Ouch. 

Three months later, in June 2019, The Sunday Times published a letter signed by Prof Phoenix and other academics registering “disquiet over a perceived inappropriately close relationship between the LGBTQ+ charity Stonewall and UK universities”.

Her views as set out in that letter were described as “problematic and scary” and “so embarrassing and unsettling” by Head of Department Dr Drake, the hearing was told. The panel also found that the irrepressible Dr Downes had popped up again, this time to demand that Dr Drake take, in the tribunal’s words, “punitive measures” against Professor Phoenix for signing The Sunday Times letter. Separately, the ruling notes that: “Whenever gender critical views were expressed at the OU, Dr Downes complained or tried to get the view suppressed.”

Later that year, Prof Westmarland reduced Prof Phoenix to tears when she raised her gender-critical views in a meeting. “Prof Westmarland said to [Prof Phoenix] that ‘having you in the department was like having a racist uncle at the Christmas dinner table’,” the tribunal found, and that in doing so, she “was effectively telling the Claimant off for expressing her gender critical beliefs”.

The tribunal heard that Professor Phoenix established GCRN in 2021, and intended the group as “a space for gender-critical research because the theoretical perspective that sex is a social construct which is mutable is sometimes presented as truth and [she] believes that others should be free to challenge that perspective without censure”.

However, GCRN’s launch provoked the ire of the OU’s academic rank and file. 

Transcripts from internal staff Yammer chats reveal the Co-Chair of the OU’s LGBT+ staff network expressing “disappointment, shock and hurt” at GCRN’s existence.

“Just a heads up that the Open University have just launched their own transphobic/TERF/GC campaign network,” said another colleague in a Tweet that Dr Downes and other OU employees subsequently retweeted. The panel found that this Tweet was: “In breach of the Respondent’s bullying & harassment policy and amounted to derogatory name calling.”

Perhaps most troublingly of all, following the establishment of GCRN, 368 of Prof Phoenix’s colleagues signed an open letter calling for the disaffiliation of the group, which it labelled “transphobic”, from the OU because of the beliefs of its members. 

The ruling found that the content (labelling Professor Phoenix as hostile to the rights of trans, non-binary and gender queer people and demanding disaffiliation of the GCRN from the OU), the signing (having 368 signatures) and the publication of the open letter “had a chilling effect on the claimant expressing her gender critical beliefs and carrying out gender critical research”.

Professor Phoenix eventually resigned from the OU in December 2021, saying she had been made to feel like a “pariah” and then took the university to the tribunal.

Upholding almost 20 of Prof Phoenix’s claims, the tribunal, chaired by employment judge Jennifer Young, said: 

We do not consider that the [university] had a proper reason for allowing the harassment to continue without publicly taking action to prohibit it.

Upholding academic freedom did not prevent the [university] from taking action to prohibit the harassment.

We find that the [university] did not provide [Prof Phoenix] protection particularly in the form of asking staff and students not to launch campaigns to deplatform the GCRN, or make calls to remove support for [her] gender-critical research, or use social media to label [her] transphobic or TERF.

Why did the OU remain so passive throughout Prof Phoenix’s ordeal? In one damning passage, the ruling notes:

It was clear from Professor Fribbance’s evidence on the public VC statements the OU was focused and concerned with the students and trying to placate them, and Professor Wilson [the OU’s former Dean of Equality, Diversity and Inclusion] admitted that potentially there was a culture of fear about drawing attention to [Prof Phoenix] and her research… We find that the [OU] felt pressured by the loud voices speaking up for gender identity culture within the OU to publicly appease the students and staff.

In a statement on X, formerly Twitter, Prof Phoenix described her victory as: “A message to all universities: you cannot stand back and allow gender critical academics to be hounded out of their jobs”.

Let’s hope they’re listening. As Haroon Siddique noted in a well-balanced piece for The Guardian, there are a number of other, similar cases either just getting started, or in the Employment Tribunal’s pipeline.

One of those cases — and a potentially groundbreaking one at that — involves FSU member and former law lecturer, Dr Almut Gadow.

Almut is bringing an employment tribunal claim arguing that she was harassed, discriminated against and unfairly dismissed having been sacked by her former university employer for questioning new requirements to embed gender identity theory within that institution’s law curriculum.

The case is “groundbreaking” in the sense that “academic free expression” lies at its heart.

This concept, set out in a string of judgments of the European Court of Human Rights (ECtHR), encapsulates how article 10 of the European Convention on Human Rights protects academic freedom — not least by prohibiting universities from penalising academics for questioning an institution or its curricula.

UK courts have yet to properly consider ECtHR case law on academic free expression. In seeking judicial guidance on this from an English employment tribunal, Almut’s case can hopefully entrench these protections in domestic law.

Almut will also argue that valuing academic freedom is, in itself, a protected belief under the Equality Act 2010. Establishing this in law could protect many other academics whose careers are threatened by the rising tide of intolerance on UK campuses.

Oh, and the name of Dr Gadow’s former employer, and the respondent in her legal case?

The Open University. 

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