A professor who was likened to ‘a racist uncle at the Christmas dinner table’ and accused of being transphobic because of her gender-critical beliefs has succeeded in her claim for harassment, discrimination and constructive dismissal against the Open University.
Professor Jo Phoenix, a lesbian who set up the Gender Critical Research Network (GCRN) at the OU, claimed she felt forced to leave her job as a professor of criminology because the organisation failed to support and protect her from belief-related discrimination and harassment.
Phoenix believes that biological sex is immutable, real and important, and that sex cannot be conflated with gender identity.
In 2018, the Guardian published a letter signed by the claimant and 53 other academics that expressed concern about self-identification for gender reassignment. This was the first time Phoenix’s colleagues became aware of her gender-critical beliefs.
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She had been due to speak at a conference in 2019, but it was cancelled as there were concerns that “the event had been hijacked into being about one kind of controversy, transgender issues, prison reform…”.
It was the claimant’s view that the conference should not have been cancelled for this reason, and claimed it had been a breach of academic freedom. She resigned from a research panel, the Harm and Evidence Research Collaborative (HERC), in response.
In 2019 she gave a talk at a Woman’s Place UK event on the topic of trans rights, sex-based rights and the curtailing of academic freedom, in which she mentioned the cancellation of the conference. She also signed a letter in the Sunday Times that raised concern over the relationship between the LGBTQ+ charity Stonewall and UK universities, and spoke of her gender-critical views on the Savage Minds podcast.
‘Racist uncle’ comment
Professor Louise Westmarland, head of discipline in social policy and criminology at the OU, invited the claimant to a meeting and said she had been asked by members of HERC to speak to her about the Woman’s Place UK talk and divisiveness in the department. The tribunal found that the divisiveness referred to by Westmarland had been because of the claimant’s gender-critical beliefs.
Phoenix alleged that Prof Westmarland said that “having [her] in the department was like having a racist uncle at the Christmas dinner table.” The claimant left the meeting feeling extremely upset.
The employment tribunal said that Westmarland was “effectively telling the claimant off for expressing her gender-critical beliefs”.
In June 2021, the claimant launched the Gender Critical Research Network, a research group focused on the importance of sexed bodies in different academic disciplines.
An open letter protesting against the launch of the GCRN was signed by 368 OU staff and postgraduate researchers. It called on the OU vice chancellor to withdraw support for the GCRN, affirm its position as a trans-inclusive employer and commit to supporting staff and students in a “trans-hostile external and internal environment”.
It said that “gender-critical feminism is a strand of thought and a belief that is fundamentally hostile to the rights of trans, non-binary, and genderqueer people”, and was critical of the GCRN’s link to the Savage Minds podcast episode the claimant appeared on.
Although the letter was addressed to the vice-chancellor, it was saved as a publicly accessible Google Doc. Some of the signatories included the claimant’s colleagues, who also tweeted and retweeted the letter to encourage more academics to sign it. Phoenix told the tribunal that it was “deeply humiliating, both personally and professionally, to be condemned by colleagues in this public way”.
Lack of action from the OU
Phoenix claimed the OU did not take action to get the letter taken down, which the tribunal said “had a chilling effect on the claimant expressing her gender critical beliefs and carrying out gender critical research”.
In 2021, the Wellbeing, Education and Language Studies Faculty and the Reproduction, Sexualities and Sexual Health research group issued a statement that expressed dismay at the launch of the GCRN. The tribunal found this statement implied that the GCRN put human lives at risk.
In December 2019, the claimant was due to give a talk on the topic of trans rights, imprisonment and the criminal justice system at the University of Essex, but the talk was cancelled because students threatened to barricade the room in protest. She told her colleagues about the cancellation but was met with “cavernous” silence in response. The tribunal found that several of the meeting’s attendees were supportive and sympathetic to gender identity views, rather than the gender-critical beliefs held by the claimant.
The tribunal found that Phoenix’s resignation from the OU in 2021 amounted to constructive dismissal as the OU had breached the implied term of trust and confidence when colleagues had contributed to, signed and published the open letter and published “harassing” tweets.
The judgment
Judge Jennifer Young said in her judgment: “The publication of the open letter encouraged a ‘pile on’ to the claimant in
particular as she was on the Savage Minds podcast, creating an atmosphere that made it more difficult for the claimant to carry out research from a gender-critical perspective within a network of other like colleagues [sic]”.
She said that the “WELS/RSSH statement contained untruths that were detrimental to the claimant’s professional reputation… likely to seriously damage the trust and confidence between the claimant and the respondent”.
“We do not consider that the respondent had a proper reason for allowing the harassment to continue,” the judgment in Phoenix v The Open University says.
We do not consider that the respondent had a proper reason for allowing the harassment to continue” – Judge Jennifer Young
An investigation into a grievance the claimant raised was suspended when she resigned. The tribunal found this was an act of post-employment victimisation.
Her complaints of direct discrimination and harassment because of her gender-critical beliefs, constructive unfair dismissal and wrongful dismissal all succeeded, while a claim for post-employment discrimination was dismissed.
A remedy will be decided at a further hearing.
Prof Jo Phoenix said: “I am delighted that the tribunal found in my favour. It was an exceptionally painful part of my career but I am glad for the win.
“Universities must act to protect their gender-critical staff. As the tribunal agreed, accusations of transphobia just because someone holds gender-critical views, organising and publishing open letters with the intent of creating a hostile environment, are unlawful forms of harassment. Academics and universities must now, surely, recognise their responsibilities towards promoting diversity of viewpoints and tolerance of alternative views.”
Professor Tim Blackman, vice-chancellor of The Open University, said: “We acknowledge that we can learn from this judgment and are considering the findings very carefully. We are deeply concerned about the wellbeing of everyone involved in the case and acknowledge the significant impact it has had on Prof Phoenix, the witnesses and many other colleagues.
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“Our priority has been to protect freedom of speech while respecting legal rights and protections. We are disappointed by the judgment and will need time to consider it in detail, including our right to appeal.”
