Open University failed to protect gender-critical scholar – judge

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