Sometimes the people around you scramble reality to turn up into down, black into white and open into closed. That’s how Prof Jo Phoenix must have felt when she was subjected to what the courts described last week as a “targeted campaign of harassment” from her colleagues that was facilitated by her employer, the Open University, in a way that shut down her academic freedom and caused a judge to find she was constructively dismissed.
What put a mark on her back was her view, shared by a majority of people and enshrined in law, that whether someone is male or female is a matter of reality, not belief, and that someone’s gender identity, or belief about their sex, cannot supersede their actual sex for all purposes in society. That’s what paved the way for her fellow academics to miscast the harassed as harasser, and for her university’s management to delude themselves that by turning a blind eye to bullying they were protecting free expression, when they were really undermining Phoenix’s ability to exercise just that.
Phoenix is not the first woman to score a decisive legal win in relation to discrimination on the grounds of her belief that the reality of someone’s sex matters since a momentous 2021 ruling. With a number of similar cases working their way through the courts, she is highly unlikely to be the last. Two features of her judgment stand out as particularly important.
First, while the courts have already observed that campaigners who want gender identity to override sex are quick to accuse their opponents of being transphobic or hateful when they’re not, I have never seen a judge so clearly call out the sleight-of-hand assertion that the belief that sex is relevant to some parts of life is bigoted, or to deny the existence of trans people. There is a difference between defending important legal protections against discrimination on the basis that someone is trans – which Phoenix happens to robustly support – and the right of someone to impose their personal belief that gender identity transcends their sex on everyone else to the extent we are all forced to agree that sex can be divorced from reality.
The judgment is scathing about the way in which 368 academics signed an open letter wrongly implying that the gender-critical academic network that Phoenix helped set up was transphobic; about the academic who said watching back a speech Phoenix gave elsewhere made her “cry at work” despite the court finding it contained no upsetting content; about the colleague who groundlessly likened Phoenix to “the racist uncle at the Christmas dinner table”; and the childish hyperbole some academics deployed in their statement suggesting that to establish a gender critical research network was to put lives at risk.
Not only did the Open University allow this harassment campaign to proceed unaddressed, it put out one-sided statements that implied there was a legitimate basis for concern. It is clear from this judgment that, if employers take their lead from organisations like Stonewall, whose chief lobbying tactic is to depict gender-critical belief as inherently hateful, they risk finding themselves on the wrong side of the law, and if activist employees fling around baseless insults like “transphobic” and “terf”, that could amount to unlawful workplace discrimination.
Second, this case of harassment on the basis of a protected belief happened in a university, where the free exchange of ideas is supposed to be sacrosanct. In her witness statement, Phoenix eloquently explains the real-world consequences of shutting down debate and research about the relative importance of sex and gender identity.
It matters for the rights of those who are same-sex attracted, especially lesbians like Phoenix. It matters for the way in which we support children experiencing gender dysphoria. And it matters that all women, but particularly women vulnerable to male violence and survivors of trauma, can access female-only spaces and services, such as intimate care, rape crisis services and prisons.
In yet another gender-critical employment tribunal hearing last week, we heard how women who have been sexually assaulted were being turned away from rape crisis services without being referred elsewhere because they express a desire for female-only group therapy.
How on earth did a university set up to democratise access to learning and the exchange of ideas get captured in this way? It is partly a tale of how the bullying of women speaking about their sex-based rights is given an acceptable gloss through a self-described “progressive” cause that would be better described as authoritarian in its threat to get with its beliefs, or else. But it is also a story of the cowardice of leaders, of bystanders looking the other way when a lesbian – who survived a school shooting, the experience of being raped at 15 then living on the streets, and profound societal homophobia to become an accomplished senior academic – experiences workplace harassment so bad that it left her with PTSD.
You would expect a grown-up institution like a university to mediate the polarising effects of social media on a contentious debate; instead, what is happening right across society is that institutions as diverse as legal and arts organisations and the police are amplifying what is going on social media into women’s professional lives with awful consequences, not just for the direct targets of the persecution, but for the many women who are chilled into self-censoring their views as a result. Leaders have left a vacuum in organisational culture that gets filled in by a small number of domineering bullies; institutional cowardice morphs into institutional childishness that morphs into institutional vindictiveness. (The Open University stands accused of discrimination on the basis of gender critical belief in at least two other pending legal cases.)
As a society, we are relying far too much on the courts and tribunals to act as a check on our nastier, more illiberal tendencies. These cases will be the tip of the iceberg; few people have the extraordinary resilience and strength of character it takes to see your day in court.
Regardless of your own views on sex and gender, you should care that this is happening in the same way you should care if any group of people is being targeted for bullying on the basis of a protected belief or characteristic. Not just because it is unlawful, but because using disagreement as the pretext for harassment and victimisation is antithetical to an inclusive society, and diminishes us all.
• Sonia Sodha is an Observer columnist
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