Open University failed to protect gender-critical scholar – judge

Tribunal rules criminologist Jo Phoenix was forced out of institution, which was ‘fearful’ about being seen to support gender-critical beliefs

January 22, 2024
Chris Havergal
Professor Jo Phoenix
Source: Geoff Pugh/Shutterstock

The UK’s Open University failed to protect one of its professors from harassment because it was “fearful” that it would be seen as expressing support for her gender-critical beliefs, a judge has ruled.

An employment tribunal found that Jo Phoenix, a professor of criminology, was forced to quit because of a “hostile environment” created by colleagues opposed to her views and the failure of the university to protect her.

“The [OU] failed to protect the [Professor Phoenix] because [it] did not want to be seen to give any kind of support to academics with gender-critical beliefs,” a 155-page ruling concludes.

Speaking after the ruling was published, Professor Phoenix said that universities must now “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,” said Professor Phoenix, who now works at the University of Reading.

“Academics and universities must now, surely, recognise their responsibilities towards promoting diversity of viewpoints and tolerance of alternative views.”

Professor Phoenix joined the OU in 2013 and hoped to see out her career there but the tribunal ruling says she started to face opposition from colleagues after signing a 2018 letter to The Guardian raising concerns about the introduction of self-identification for gender reassignment and another letter the following year to The Sunday Times which expressed disquiet about the relationship between LGBTQ+ charity Stonewall and UK universities.

In one meeting with Professor Phoenix, Louise Westmarland, then deputy head of the department of social policy and criminology at the OU, told her that “having you in the department was like having a racist uncle at the Christmas dinner table”, the tribunal ruled.

Deborah Drake, who was then head of department, was found to have told Professor Phoenix not to speak to the department about her research or the allegations of transphobia which she was battling – and, in a phone call with Professor Phoenix, to have likened her to Charles Murray, a sociologist who has argued that racial inequality is partly attributable to biological differences between races.

The situation worsened significantly in June 2021 when Professor Phoenix launched with colleagues an OU Gender Critical Research Network (GCRN). An open letter calling on the OU to withdraw any affiliation with the network and to take action against a “trans-hostile” environment was signed by 368 staff members and postgraduate researchers, as part of what the tribunal found was a “targeted campaign” and a “pile-on”.

Professor Phoenix started to receive death threats and asked the OU to take action to stop the campaign against her.

But vice-chancellor Tim Blackman issued a statement which, while it talked of “distress on all sides”, only referred specifically to “hurt and a feeling of being abandoned among our trans, non-binary and gender non-conforming staff”, and did not mention the distress felt by Professor Phoenix. The tribunal ruled that nothing in the statement “looked like the action that [Professor Phoenix] had requested” to stop the attacks on her.

“We find that the [OU] was fearful of outwardly being seen in any way to support the members of the GCRN including the claimant in case it was seen as support for gender-critical beliefs,” the ruling says, adding that the university “felt pressured by the loud voices speaking up for gender identity culture within the OU”.

Professor Phoenix, who described feeling ostracised and suffering from worsening mental health as a result of her treatment, resigned in December 2021 after being offered the job at Reading.

The tribunal found that Professor Phoenix was a victim of discrimination, harassment, constructive unfair dismissal and wrongful dismissal.

Speaking after the judgment was published, Professor Blackman said that the OU was “disappointed by the judgment and will need time to consider it in detail, including our right to appeal”.

“We acknowledge that we can learn from this judgment and are considering the findings very carefully,” he said.

“We are deeply concerned about the well-being of everyone involved in the case and acknowledge the significant impact it has had on Professor Phoenix, the witnesses and many other colleagues.

“Our priority has been to protect freedom of speech while respecting legal rights and protections.”

chris.havergal@timeshighereducation.com

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Reader's comments (21)

#1 Submitted by nikj on January 23, 2024 - 8:44am
One can only hope that universities, and unions, will learn what the Equality Act states, and stop acting as if the law was as a certain influential charity would like it to be.
#2 Submitted by InLondon on January 23, 2024 - 9:57am
This kind of harassment; smearing women's rights campaigners 'transphobic', 'terf' or 'bigoted' absolutely does create a degrading, hostile and intimidating workplace for feminists, or indeed anyone who holds the widespread beliefs that there are two sexes, no one can change sex, and sex matters in policy and law. UCU has a very mixed record in defending members harassed in this way, with some UCU activists leading the harassment. It is beyond time that university management stepped up to protect their own staff as the 2010 Equality Act requires. All universities who are members of the Stonewall Diversity Champions scheme have had every policy checked by this extremist organisation which defines as 'bigotry' any disagreement with gender identity ideology (the belief that we all have an innate gender identity which is unquestionable and more important than our biological sex). Universities have a lot of work ahead to undo the unlawful definition of 'transphobia' embedded in policies. They need to set up working groups to rexamine Dignity at Work, produce training materials and workshops, take disciplinary action and to generally start to make it clear that there is no 'academic freedom' defence for harassing your colleagues with insulting terms and open letters calling for their own academic work, conferences and research networks to be obstructed. The Employment Tribunal is very clear this won't wash, and the harassers who clearly felt so righteous at the time were left floundering in lies since Forstater 2021 confirmed that this is unlawful conduct.
#3 Submitted by b.pierscionek888 on January 23, 2024 - 10:25am
An excellent outcome and well done Professor Phoenix for not backing down.
#4 Submitted by M Corcoran on January 23, 2024 - 12:11pm
Stonewall generates income from issuing its kitemarked approval to bodies, including universities. There is a need for universities to review every relationship they have with such kitemark awarding bodies, as their approval may not meet with legal standards of justice, equality or fair practices.
#5 Submitted by Meanwhile..Reality on January 23, 2024 - 2:04pm
The idea that there is some immutable biological dividing line between the male and female sexes has no basis in science whatsoever (XY / XX is a gross simplification as any academic in biology knows) and could only be described as a religious gammon dogma to try to justify insecurities(fear) and bigotry(anger). In fact ALL group identities (Straight, Gay, Bi, Trans, Ethnic, Nationalist, Religeous etc...whatever group you like) are purely social constructs which people use as shields against the unknown. You don't need an identity card in your head to be who you really are instead of a groupist sock puppet. These identities are based on handed down / presumed knowledge and are like a viral thread running through and corrupting their entire database of knowledge and consciousness. Unfourtunately most people have invested so much in these identities that they are not prepared to pull the rug out from under their own feet in the quest for truth. Most people can never achieve the level of neuroplasticity necessary to globally question their entire consciousness. They will just see these words on a surface level and tritely ignore the gravity their predicament, preferring to remain as like human flies stuck on fly paper and sexual energy is the very strongest of glues when, as it so often is, misdirected.
#6 Submitted by Shoja on January 23, 2024 - 4:53pm
In human beings sex is binary and immutable, and it sometimes matters. This is especially the case when we consider the validity of data and the need for robust research analysis, e.g. in criminology and medicine. it's also important to take proper account of the need to protect young people from irremediable harm in the 'affirmation model' and to protect women in situations of vulnerability such as prisons and hospitals.
#7 Submitted by Ann_Historian on January 24, 2024 - 1:06am
This case is about the bullying of an academic who was trying to do her job: teaching and researching. Prof Phoenix's particular approach or personal beliefs are relevant only in the sense that they are clearly lawful and, as the Forstater judgment made clear, have always been lawful. We don't need to ruminate on neuroplasticity or sexual energies to understand that there are fundamental questions here that academics should be allowed to debate. We are living in an interconnected world in which many people hold strong beliefs that might be experienced as unsettling. We have to encourage our students to develop mental resilience and we have to model how to deal maturely with contested beliefs. Professor Phoenix's colleagues, as everyone can read in the judgment, were mostly incapable of this resilience or even a modicum of humility. When I started out as an academic, I had a good mentor who once in a while told me to calm down and not take myself too seriously. It was good advice.
#8 Submitted by Meanwhile..Reality on January 24, 2024 - 10:55am
The fact remains that people with 'beliefs' such as 'sex is binary and immutable'...beliefs that scientific evidence shows are patently untrue should be called out for their bigotry. They may just be very insecure in themselves, but throughout history, very insecure people are always the ones who hurt people...mentally, physically and obviously people who hold a position where they have a status and can influence those under them need to be held to a higher level of accountability. You may have an opinion on what age a child should be given hormone treatment or have surgery, but it's really more relevant how the psychologist and the child see it, not so much the layman and definitely not the loud ones standing on soapboxes who doth protest too much! And when they extend their over-interest on the subject to try to justify segregation, making the excuse of the need for safe spaces, the rankerous smell of prejudice should hang in the air for all but the most noseblind to smell. You cannot justify segregation of a group of several hundred thousand people (in the UK) based on a couple of anomalous instances of horror stories, but that is the envelope that people on the far right (or let's just call them bigots) always take to push their bigoted agenda. There has been a big increase in violence to trans people due to this uprising of militant feminism and trans people already had the highest suicide rate of any group due to constant abuse. For those not fortunate enough to 'pass', they get abused so regularly day after day whenever they go out, they become understandably sensitised to it and just one comment can be enough to make them feel suicidal depressed. It comes to a point where they become reclused, living like hermits. Oh ...but it's so much more important to protect the childish beliefs of their tormentors. You can't make it up ...it's sick and twisted like this populist government and its injustice system.
#9 Submitted by CHalla on January 25, 2024 - 2:09pm
Great news. I hope a lot more people come forward and wallop their bullying, cowardly employers too, as there'll be many such cases.
#10 Submitted by CHalla on January 25, 2024 - 2:12pm
Great news. Hope Prof Tim Bl*ckman has to fund the settlement out of his/him's own pocket.
#11 Submitted by Jeffrey Vernon on January 25, 2024 - 3:18pm
Very few propositions, outside mathematics, are unambiguously true or false. Nearly everything in humanities and social science is contested or a matter of opinion, and there is a diversity of viewpoints and research priorities. You might find someone's views or their work distasteful, but that is a moral judgment, not an intellectual one. If you disagree intellectually, make your case, without indignation. You might change the other person's mind. You might change your own. And if the idea of an intellectual debate makes you feel unsafe, then academia might be the wrong job. It's not meant to be a warm bath of consensus.
#12 Submitted by m.robertson8_291084 on January 25, 2024 - 5:01pm
It's easy to jump up and down and be dogmatic about whatever it is YOU believe, and to whine like mad when someone has a different opinion. What we ALL need to do is recognise that there is a diversity of views, that people who hold those views feel strongly about them, and that when we disagree it is the OPINION that we are disagreeing with, not the person who holds it. We must drop this misconception that we have to force our own views on others. I don't really care if you think there are only 2 sexes, immutably fixed at birth, or if you think that each individual can decide what gender they are from a whole menu (or make up a new one) - that's your opinion and you are welcome to hold it. What you do not have the right to do is to demand that I say you are correct. Nor should I demand that you adopt my views as The Only Truth. The sooner we all realise that, the better! (And tomorrow I start my Ethics for Computer Scientists class....)
#13 Submitted by Meanwhile..Reality on January 25, 2024 - 5:34pm
The problem is...the so called 'gender critical' people can not and do not make any attempt to validate their beliefs with any credible intellectual reasoning except for infantile referral to the ...how should we put it...ladybird book of science, whereby they can all too easily be shot down in flames. Their stance is more of a engorged amygdala reaction than an intellectual standpoint. The 'gender critics' are the real bullies, not the institutions who try to protect their students from them. They feel threatened in their own divisive identity by the whole idea of transgender and insecure people always respond with a fight or flight response. Unfortunately intellect takes a back seat in these matters under the law as long as the 'gender critical' bullies wealy wealy(sic) believe it then weight is given to it.
#14 Submitted by Ormond on January 25, 2024 - 6:04pm
I think there is a wider issue here about how the OU is reacting to free speech issues. It feels like a culture of repression is now at loose in the University. For a personal example, I wrote in an internal OU newsletter last year that the OU might come into conflict with the Office for Students over its current graduation rate of around 25% against the OfS threshold of 40%. My article was suppressed on the grounds that it was 'inconsistent with the OU’s values'. Denial of a problem is the first step on a downward path as we know only too well from the Post Office saga.
#15 Submitted by b.pierscionek888 on January 25, 2024 - 9:41pm
The scientists who state that sex is binary do have facts to back up what they say. Chromosomal difference do exist and those of us who work in science and medical research know this. Those who cannot accept this, lack an understanding or appreciation of science and refuse to accept biological fact, and yet have no scientific evidence to back their stance, come out with unjustified attacks on science and those who practice and/or follow it.
#16 Submitted by andrew.... on January 25, 2024 - 10:55pm
“Concerned about” and “acknowledge” the impact on Prof Phoenix etc. No sign here of actual contrition or genuine concern by university management for the pile on’s impact on Prof Phoenix.
#17 Submitted by Meanwhile..Reality on January 26, 2024 - 12:25am
https://www.scientificamerican.com/article/sex-redefined-the-idea-of-2-sexes-is-overly-simplistic1/
#18 Submitted by Meanwhile..Reality on January 26, 2024 - 1:45am
This is not a trivial difference of opinion, it is a 'battle' between the rights of those espousing anti-trans opinions (unbacked by scientific rationale) who are trying to take away the rights of a minority group and those trying to live their lives and have the same civil freedoms as everyone else. Given the science (Rather than opinions which are like backsides ...everyone has one) that all identities ...INCLUDING SEX are NOT black and white(Show the evidence (if you have any) writer of comment no.15...and I'm sure it'll be discredited...probably published by ladybird and edited by Mark François), then we know that the attempt by the anti-trans side to exclude certain people from certain places is a nonsense. How do you enforce it..chromosome tests at the door...just by appearances. It's known that 1.7% percent of babies are born without clear distinction between male or female genitalia..Do you want to dictate to them who they are...or let them decide for themselves. One of the biggest medical scandals yet to be fully realised is the operating on intersex babies at birth - 'gender-normalising surgery' as it is known. https://www.nbcnews.com/feature/nbc-out/you-can-t-undo-surgery-more-parents-intersex-babies-are-n923271 Of course, the populist right wing governments are all to keen to support the black and white interpretation of sex it's pretty much all they have left to divide and rule and distract people to 'look over there' oh and of course the idiotic Rwanda (boat people) policy while they do their dirty deals for personal gain, dismantling the social fabric and selling us down the river. If you think everyone has an opinion and every opinion is as valid as the other, then we may as well climb back up into the trees/ slither back into the primordial soup. If the Alma doesn't Matter then you really don't belong in academia.
#19 Submitted by b.pierscionek888 on January 27, 2024 - 2:32pm
The evidence is in every credible book on biology, physiology, anatomy, medicine. Not opinion but fact... Those who have not training in the basic sciences ought not be trying to discredit what they do not understand.
#20 Submitted by michaellewissnow on January 28, 2024 - 12:58pm
And on and on around in circles the heated argument goes.... Perhaps the discipline found most wanting over the last few years has been philosophy. But for those tired of claim and counter-claim about 'the facts' and 'the science, might I suggest "Trouble with Gender" by Alex Byrne, MIT Professor of philosophy, is a place to start. It remains quite an angry book, perhaps because of the treatment of his wife by her university, but when the same, head-banging rows about e.g. 'what is a woman?' Etc continue, some proper conceptual analysis is needed. It is the Stonewall position over a few years, plus others, of 'no-debate' that has got the LGBT+ into such a vicious dead-end that now sees legal cases coming at them like a series of backed upped trains?
#21 Submitted by Ann_Historian on January 30, 2024 - 5:29pm
The 'sources' quoted above are a well-known opinion piece ('Sex Redefined' in the magazine Scientific American ... mischievously called 'Unscientific American' by some) and a news article. Perhaps a scientist could clarify whether it really is the case that 1.7% of babies have ambiguous genitalia, that seems a tad high to me (reference?). And surely, so-called intersex conditions are not the same as being transgender, in such cases there is usually no physiological ambiguity involved? I also don't think there is much evidence that 'militant' feminists are violently attacking transgender people. To get back to the topic, this was a case brought by an academic bullied out of her job by people who apparently thought she didn't 'belong in academia'. Those people behaved very uncollegially, I think, having read some of the tribunal judgment. What made them lose their moral compass? If the arguments of the gender critical side are so banal and 'Mickey Mouse', then why would anybody care? It's a mystery ...

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