The employment tribunal considered whether Professor Phoenix had been directly discriminated against, harassed and victimised for her gender critical beliefs when she suffered a sustained campaign against her and her academic research group by colleagues objecting to her gender critical views.
Applying the Grainger criteria, the Tribunal found that Professor Phoenix held protected gender critical beliefs, namely that she believes that biological sex is real, that it matters, that it is not possible for someone to change their biological sex, and that biological sex should not be conflated with the gender identity. Please see our Legal Update for a more detailed analysis of the Grainger criteria.
Professor Phoenix made her gender critical views known by co-signing a letter to The Sunday Times in 2019. As a result, she was harassed and directly discriminated against by colleagues, including in one instance the Deputy Head of Department likened her to "the racist uncle at the Christmas dinner table".
In 2021, Professor Phoenix and others established the Gender Critical Research Network (GCRN), intended to be an academic research group promoting research into sex, gender and sexualities from a gender critical perspective.
An open letter was published, signed by 368 of Professor Phoenix's colleagues, objecting to the GCRN and calling for it to be closed down on the grounds that it was hostile and harmful to the trans community. Professor Phoenix had also received death threats during this period and she began to suffer symptoms of PTSD and stress.
Professor Phoenix raised a grievance of bullying and harassment, citing damage to her professional reputation and mental health.
Six months after the GCRN's launch, and following a statement from the Vice Chancellor which failed to condemn the campaign against her, she resigned.
The tribunal held that Professor Phoenix was entitled to exercise her right to manifest her beliefs by setting up and participating in the GCRN, and that publication of the open letter by her colleagues which encouraged a "pile on" from others, constituted harassment on grounds of those beliefs. Several other instances of similar harassment were also upheld.
The Judgment stated: “We find that the claimant was not provided with effective protection from the effects of the launch of the GCRN. We find that the respondent did not provide the claimant 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 the claimant’s gender critical research, or use social media to label the claimant transphobic or TERF (trans-exclusionary radical feminist). The respondent failed to protect the claimant because they did not want to be seen to give any kind of support to academics with gender critical beliefs, including the claimant.”
The Tribunal found that, although the University did not disaffiliate the GCRN, it did not do enough to protect Professor Phoenix from harm, out of fear of being seen to support gender critical beliefs. In particular, it failed to produce an outcome for her grievance while she was still employed and refused to take down certain online statements. This failure to act itself constituted harassment and the decision to terminate the grievance process once Professor Phoenix resigned was post-employment victimisation.
In addition, the University's repudiatory breaches of the implied terms of trust and confidence, and the duty to provide a suitable working environment, amounted to constructive dismissal.
This decision follows a line of cases on gender critical beliefs following the decision made by the Employment Appeal Tribunal in Forstater. It is clear that employers need to tread very carefully to ensure they adequately balance individual employees' rights to hold sometimes conflicting protected beliefs, and to foster a workplace culture that is truly inclusive.
Authored by Gurvinder Bains