How many wins will it take?
After Jo Phoenix’s victory in the employment tribunal, how many more court cases will it take to win back our rights?
The great news this week was obviously Jo Phoenix’s very comprehensive win against her former employer, the Open University, for direct discrimination leading to constructive dismissal. The judgment is long but a fascinating read, and if you’re not feeling like the whole thing, there’s a very good interview with her in the Telegraph. And if you are in a part of the world where you can listen to the BBC, you absolutely must listen to her interview on Woman’s Hour last Tuesday (she’s on first, and given pretty much half the programme).
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Emma Barnett, the interviewer, more or less managed not to do what she did to Maya Forstater and Kathleen Stock, namely strongly imply that they brought the discrimination they suffered on themselves by not staying silent (from memory – I can’t bear to listen back – she asked Maya five times, in varying words, if she regretted having said anything about the government’s gender self-ID proposals that started Maya’s legal saga). Because the thing is, Jo did fall apart. As she wrote in her long and moving witness statement, when she was 15 she was raped by two boys she knew from school in Austin, Texas, and went through not only that trauma but the trauma of a police investigation.
That set her down a very dark path and she spent time in chaotic, dangerous places. Her love for the Open University came about after she returned to the UK aged 18 (she is British; her parents moved to America when she was a child). As she was pulling her life together she studied there, and went on to be a renowned criminologist. When a professorship came available at the OU she applied despite it involving a major pay cut.
The idea was for this to be her final job, and a chance for her to give back to the institution she loved so much. Instead she was relentlessly bullied and harassed by colleagues and people she had thought were friends. As she told Barnett, the experience, and that of being cross-examined in her tribunal hearing, were reminiscent of what she suffered giving evidence regarding her rape.
It took the OU several days after the judgment to apologise to Jo, and I haven’t seen even a simple acknowledgement of it, let alone an apology, from a single one of the 368 staff at the OU who signed a grossly dishonest open letter making false and inflammatory claims about the gender-critical research network Jo and a handful of colleagues had set up. The ruling singles out some individuals who took part in the witchhunt and tears apart their histrionics and disingenuousness.
Indeed, the bullying continues. I was particularly struck by a tweet from Zoe Williams, who competes with Owen Jones for the title of nastiest and plain worst journalist to write for the Guardian.
Genuinely think that if Woman's Hour is going to give this much uncritical airtime to GCs, then for balance the BBC should have a Trans Ally hour where we get to complain about them _the entire time_.
— @zoesqwilliams@mindly.social (@zoesqwilliams) January 23, 2024
I’ll extend the very greatest generosity I possibly can to Williams, and assume she didn’t actually listen to the interview on Woman’s Hour, but merely registered that a “TERF” had been invited on. If I’m wrong and she did actually listen to it, and hear about the rape at age 15, the diagnosis of PTSD, the collapse during the tribunal hearing – and Jo’s clear and balanced explanation of why, as a specialist on prisons policy, she knows that we cannot allow gender identity to replace sex as a factor in prison placement – then I have no words to express what I think of Williams. The sheer cruelty is almost unbelievable.
So what will it take for the bullying to stop? What will it take for employers to register that it’s their legal duty to tackle it?
One big problem is that they haven’t even begun to grasp that, under the Equality Act, “religion or belief” is a protected characteristic that does not weigh established religions any differently from other beliefs, as long as those beliefs are “WORIADS” (see issue 70 of this newsletter for what this means). So as far as the law is concerned, discriminating against someone because of their gender-critical belief is the same, structurally, as discriminating against them for being Jewish or Muslim.
Organising an open letter making hyperbolic and false claims, and using slurs, about a new research network of GC people is like organising one doing the same about a study group of Jews or Muslims – referencing the blood libel, using nasty synonyms for their religion (you know what they are), calling them all terrorists and so on. And that would obviously be harassment motivated by bigotry. Doing nothing about your employees when they act like this makes an employer liable – the OU was found to have committed direct discrimination against Jo by refusing to step in to protect her.
To be clear, I’m not claiming an exact moral equivalence between these various forms of bigotry. The blood libel is soaked in centuries of death; slurs about all Muslims being terrorists are tied in with some of the most horrifying things happening in the world today. Telling a Jewish colleague that their religion glorifies human sacrifice would be objectively far, far worse than telling a gender-critical person that they’re transphobic, and the cost to an employer for failing to step in to stop this would no doubt reflect that. I’m saying the structure of the offence is the same.
But employers haven’t registered that. The first statement after the judgment by the OU’s vice-chancellor, Professor Tim Blackman, showed he really hadn’t grasped who the bad guys were, or that he and his university administration had enabled those bad guys every step of the way. It read:
“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.
“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.”
It was days later before he actually apologised to her.
Before and during the hearing, the OU tried to frame the bullying open letter denouncing Jo as an exercise of “academic freedom”. Imagine, now, that it had referred to some other belief and made similar baseless allegations using slurs – there’s no way the OU would have tried that argument (actually, as I write that I feel some doubt about expressions of antisemitism… well, I think you get the point, all the same).
A similar failure to draw analogies comes when employers try to use as their defence that they’re not discriminating, as such – it’s their employees or customers. This happened last year with the Stand, an Edinburgh comedy club that cancelled a booking for Joanna Cherry, an MSP MP, because of her gender-critical views. “Key operational staff”, it said, had told the management they would refuse to work if she appeared and it intended to “ensure that their views are respected”.
Now imagine these employees had said they didn’t want to work on her show because she was Jewish or Muslim, or because of her race (another protected characteristic). An employer’s staff refusing to work with a black person is absolutely no excuse in law for discriminating against them – nor, by the way, is that customers are bigots. The Stand should have responded in precisely the same way when faced with anti-GC bigotry among its staff as it would have if faced with any other sort of bigotry: found agency staff to ensure the show could go on, and subjected any staff who were rostered and didn’t turn up to disciplinary proceedings.
I’m told by employment lawyers that after the Sex Discrimination Act 1975 and Race Relations Act 1968 (which extended protection against racial discrimination to employment), some employers would turn up to industrial tribunals and explain that it wasn’t they who minded employees in positions of authority being women, or frontline staff being black: it was that colleagues or customers didn’t like it. A decade or so of losses disabused them of the notion that somehow this wasn’t their responsibility, and educated others in the ecosystem of employment law – union reps, lawyers, managers, academics and the rest. I suspect we’re going to have to go through something similar over the next decade before they learn the same when it comes to discrimination on grounds of GC belief.
This failure to see that the law deals the same way with this belief as with others misleads many in other ways, too. Often, they clearly think that expressing gender-critical beliefs – in any way at all – is by definition harassment. Jo and her colleagues in the gender-critical research network supposedly made colleagues and students “feel unsafe” simply by setting up the network and thereby revealing their beliefs. And once you have framed that most basic manifestation of belief as harassment then responding with actual harassment can be excused as a natural, indeed moral, response.
We’ve seen this over and over again in tribunal hearings, most recently in the tribunal of Roz Adams, who alleges constructive dismissal from Edinburgh Rape Crisis Centre, which is headed by a trans-identified man, Mridul Wadhwa and which functions on the basis of gender self-ID for both staff and service-users. Roz was subjected to disciplinary proceedings simply for asking what to do about a woman who approached it for counselling and was offered a non-binary counsellor with a typically male name; Roz suggested reassuring her by saying that the counsellor was “female at birth”. That was framed as transphobic and led to an investigation for misconduct which was so hugely upsetting that Roz resigned.
I wish I’d been able to be at the tribunal live. Instead I had to make do with the heroic work of the Tribunal Tweets team; you can catch up here. Again and again, witnesses for Edinburgh Rape Crisis Centre either failed to understand, or pretend to fail to understand, that if someone holds the protected belief that “trans women are men”, then as far as they’re concerned Mridul Wadhwa is a man, and telling them that the centre is “women only” is gaslighting. And as a natural consequence, they see Roz’s simple request for guidance on how to talk to such a person as bigotry and misconduct.
NC: Court has heard that policy is if a SU says I would not be OK seeing a man, a male, the service will not promise to respect that.
MS: Yes they will bcs no men working at ERCC.— Tribunal Tweets (@tribunaltweets) January 24, 2024
This is a narcissistic reversal, or what campaigners against male violence sometimes call DARVO – Deny, Accuse, Reverse Victim and Offender. It’s the argument that “she made me do it”; that by getting her face in the way of his fist, she’s the aggressor.
I think it happens with the genderist belief system because adherents don’t accept it as a belief system at all. Indeed I often have people say to me that the expressions “trans ideology” or “gender-identity ideology” are themselves transphobic, because “trans people aren’t an ideology”. This is a category error: nobody would say that Catholicism isn’t a religion because “Catholic people aren’t a religion”!
I’ve been trying to think of an analogy with another belief system, and what I came up with was the way that some Christians used to frame Jews as a subgroup of those to whom God had revealed the truth that Jesus Christ was his son and the saviour of humanity, but who wilfully, wickedly and knowingly rejected that blessing. Judaism was then not only evil but Jews knew it was, and persisted in professing their faith out of sheer malice. Simply by being identifiably Jewish they were doing wrong to others – harassing them, in modern parlance. And that made them fair game for mistreatment. If you do not even recognise your belief system as a belief system, non-believers are easy to dismiss as bigots.
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