The Equality Act (2010) remains an important tool for protecting people from direct and indirect discrimination as well as harassment on the grounds of gender reassignment; marriage or civil partnership status (in employment only); pregnancy and maternity leave, race including colour, nationality, ethnic or national origin; religious or philosophical belief; sex; and sexual orientation. Recent cases brought to Employment Tribunals have foregrounded how the protection of belief is coming into conflict with other protections. Some beliefs that have been deemed “worthy” or “capable” of being protected, such as “gender critical” beliefs that sex is immutable and religious beliefs that marriage is exclusively heterosexual, are understood by groups with protected characteristics as offensive and potentially discriminatory. Many legal firms describe the situation as requiring a balancing act. One post is entitled, “It’s a balancing act: Well, technically it’s the Equality Act.”[1]

I offer here some preliminary observations on problems that follow protecting religious or philosophical beliefs based on my analysis of decisions made by Employment Tribunals. It is my view that not only have some Employment Tribunals failed in the task of balancing different protections but the Tribunals are being misused as tools for the targeting and harassment of groups they should be protecting. My prediction is that this situation will only worsen without direct intervention such as a judicial review.

I write this post not as a legal expert but as a scholar who has undertaken empirical research on equality and diversity within public institutions, in particular, universities, for well over 20 years. My research has included interviews with diversity and equality practitioners, administrators responsible for handing complaints, as well as students and academics who have made complaints about harassment and discrimination. I began doing empirical research on equality and diversity work just after the Amendment to the Race Relations Act (2000) came into force. This Amendment reconceptualised equality as a positive duty, which meant that all public authorities were required not only to prevent “unlawful racial discrimination” but “to promote equality of opportunity and good relations between persons of different racial groups.”[2] When the Equality Act (2010) replaced all existing legalisation on discrimination and harassment, it redeployed and strengthened the definition of equality as a positive duty.

In my forthcoming book, A Complainer’s Handbook: A Guide to Building Less Hostile Institutions, I draw on Employment Tribunals as source materials with a particular focus on how decisions have developed definitions of “hostile environment.”[3] My motivation in writing this post is not to share these findings but to consider some of the implications of a recent Employment Tribunal, Jo Phoenix Versus The Open University (3322700/2021 & 3323841/2021). In this case, objections to the setting up of a Gender Critical Research Network at The Open University were key. Colleagues raised concerns about the potential impact of this network on the wellbeing of trans and non-binary students and staff. Many signed an Open Letter in or as an expression of solidarity (that solidarity was key to how the Open Letter ended up being signed by over 300 people was acknowledged in the tribunal). Judge Young found that Phoenix’s claim for direct discrimination on the grounds of her “gender critical” beliefs was well founded and that she was constructively dismissed. The Judgement concluded that the Open Letter created a hostile environment for the Claimant. The VC of the Open University has since “unreservedly apologised” to Professor Phoenix.[4] The media has widely reported the case as evidence that “gender critical” feminists are being “hounded out of the jobs,” to quote directly from the title of at least one article, because of their protected beliefs.[5]

I want to offer some preliminary observations both on the judgement and how it has been reported.^[6] I would argue that it is written not simply from the point of view that “gender critical” beliefs should be protected but as if to confirm their validity. One way it does this is by treating the case as a dispute between people with different beliefs. In fact, the judgement goes further by giving character to the beliefs of those who expressed concern about, or objected to, the setting up of the network by contrasting “gender critical” beliefs with “gender identity” beliefs or “gender affirmative” beliefs.[7] This is very misleading. Many who are critical of “gender critical” beliefs, and who consider the “gender critical” movement to be hostile to trans rights, do not regard themselves in these terms or use these terms in their work.  Yes, the term “gender identity” is used in legal and administrative discourses, becoming key in enabling trans people to access health care and other services. But legal and administrative discourses rarely form the political horizon for groups who are fighting for equality.

The main problem with treating “gender identity” or “gender affirmative” as beliefs is not, however, because of how it misrepresents opposition to “gender critical” beliefs. It is in the very use of the language of beliefs rather than characteristics. Under the Equality Act (2010), gender reassignment is a protected characteristic not a protected belief. By treating the dispute as a conflict between beliefs, the judgement validates the “gender critical” belief that gender reassignment is a belief, which it calls the “gender identity” and sometimes the “gender affirmative” belief. To put this in more simple terms, the judgement treats trans people as a belief. If you examine the reporting on the Tribunal decision, the consequences of this treatment become clear. A “gender critical” journalist Sonia Sodha made the following statement: “that whether someone is male or female is a matter of reality, not belief.” She suggests that “someone’s gender identity, or belief about their sex, cannot supersede their actual sex for all purposes in society.”[8] When gender reassignment is transformed from characteristic to belief, “gender critical” is transformed from belief to characteristic. So, when trans people are treated as a belief, sex is treated as a reality that supersedes that belief.

This is how the judgement does more than protect a belief; it validates it. Note also the use of sympathy or what I would call sympathetic description. Whilst it uses sympathetic language for the claimant – with references in the first few pages to how she was “visibly upset,” it does not treat the Respondent’s witnesses in the same way. I was very struck by the following statement: “We had in mind that the majority of the witnesses we heard from were academics. These were professionals who had been trained in the methodology of research and presentation of fact and analysis producing argument. We expected a certain basic level of rigour in presenting the evidence before the Employment Tribunal. There were some witnesses who we address below in our findings who did not meet this standard.”  I find this statement concerning because of how it positions witnesses for the Respondent as if they are being called upon as academics or researchers impartially recording events rather than as being implicated in, and affected by, them. There is no acknowledgement that witnesses were, like the Claimant, distressed by these events. Judge Young questioned one witness about how to describe trans women who have not surgically transitioned and then commented harshly on the failure of the witness to provide an adequate answer on the spot. There is no sign of any awareness of how this kind of questioning, so often directed towards trans people themselves, might be part of the problem.

Sympathy is not simply about acknowledging hurt. To be sympathetic to someone is also to create a picture from their point of view.[9] The judgment states that the Claimant’s colleagues made complaints or tried to suppress her speech (referring to a colleague who “on multiple occasions” had “complained or tried to get her view suppressed”). It also quotes from the Claimant that she had “steeled herself” for internal complaints but that she was unprepared for the reactions by colleagues. The picture provided in the judgement is of an academic and a network being unfairly targeted by complaints about transphobia.

Is this an accurate or full picture?  It would usually be very difficult to answer such a question because complaints are mostly kept confidential. But one of the consequences of bringing a grievance to an Employment Tribunal is that material that would otherwise remain confidential enters the public domain.  Evidence submitted by the Respondent to the Employment Tribunal included a What’s App chat. Here the Claimant encouraged her “gender-critical” colleagues to make formal complaints or take grievances against anyone who signed the Open Letter. The lawyer for the Respondent suggested she was “exhorting” other people to submit formal grievances and complaints, which would, of course, be a problematic abuse of power and position.  The Claimant disagreed with this description. She said instead that she was “encouraging them to consider” making complaints. Whether we use positive or negative language (“exhorting” or “encouraging”), the evidence is of an incitement to complain. So, whilst the judgement quotes from the Claimant about how she steeled herself for “internal complaints,” it is worth noting she was not only making them but also inciting others to do so.

Evidence submitted to the Employment Tribunal also included the Claimant’s grievance, which makes the following request: that university officials write to all signatories of the Open Letter warning “that unless they retract their signatures and sign an open letter of apology retracting the allegations contained in the open letter, they will be subject to investigation for breaching the Bullying and Harassment Policy.” So, whilst the judgement refers to colleagues who had “complained or tried to get [the Claimant’s] views suppressed,” the evidence seems to point to how complaints and grievances were used to suppress the views of those critical of the network.

The judgment does not acknowledge any problems with this use of complaints and grievances despite the evidence submitted. The implication of the judgement is that Open letter was more problematic than “internal complaints” because of its status as a public document that showed the extent of opposition. My own view is that it was appropriate for objections to the network to be made public rather than made through formal complaints, which as I note above, tend to kept confidential (even after they have been “resolved”). It seems more appropriate to make objections public given they were about the creation of a public forum.  I might add here that the judgement itself seemed to treat publics and not just people rather unequally. So, whilst much is made in the judgement of “pile ons” directed at the Claimant on social media, there is no mention of the “pile ons” instigated by the Claimant, drawing on her extended network of participants in the “gender critical” movement, against those who signed the Open Letter.

The Judgement also does not really acknowledge why so many colleagues objected to the setting up of a Gender Critical Research Network. These objections are simply dismissed as creating a hostile environment for the Claimant.   It is noteworthy that the first Tribunal to deem “gender critical” beliefs worthy of protection, the Appeal brought by Maya Forstater, was not so dismissive of objections to those beliefs (2021, KEAT/0105/20/JOJ). In fact, this judge acknowledged that other people will find “gender critical” beliefs “profoundly offensive.”

Let’s retrace some of the steps. In Forstater’s original tribunal, the judge concluded, “from … the totality of the evidence, that [Forstater] is absolutist in her view of sex and it is a core component of her belief that she will refer to a person by the sex she considered appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment. The approach is not worthy of respect in a democratic society” (2019, 2200909). The offensiveness of her belief is related here to how it would manifest in her conduct towards persons with the protected characteristic of gender reassignment.

As is well known, this judgement was overturned at appeal. The appeal judge concluded, “Just as the legal recognition of civil partnerships does not negate the right of a person to believe that marriage should only apply to heterosexual couples, becoming the acquired gender ‘for all purposes’ within the meaning of GRA does not negate a person’s right to believe, like the claimant, that as a matter of biology a trans person is still their natal sex. Both beliefs may well be profoundly offensive and even distressing to many others, but they are beliefs that are and must be tolerated in a pluralist society.”[10] The protection of the belief involved here an acknowledgement that the belief, however it is expressed or manifest, “will be profoundly offensive and even distressing to many others.” That is why the toleration of such beliefs in a pluralistic society does not mean that other people will not find them “profoundly offensive.” That is also why objections to such beliefs should be expected as well as tolerated. After all, the Equality Act (2010) states explicitly that to protect a belief is to protect those who do not have it. So, whilst an employer cannot discriminate against someone for having these beliefs (as long as they manifesting in a way that does not infringe on the rights of others), an employer should also not prevent other employees from manifesting objections to it.

The Open Letter was an objection to a manifestation of a belief. The tribunal found the Open Letter was “not scholastic,” and thus not an exercise in academic freedom. Surely it was not intended to be. It would be better understood as an exercise in free speech. A major problem with the judgement is imply this failure to acknowledge that “gender critical” beliefs are “profoundly offensive and even distressing to many others,” to quote again from the Forstater ETA. In other words, it separates “gender critical beliefs” as such from the likely cause of any objection, thus creating the impression that the objections came from individual colleagues who are “uncomfortable” with “gender critical” beliefs. But these objections are, in fact, widely shared by feminists, gender studies scholars, as well as diversity and equality practitioners, as evidenced by the nature and extent of support for the Open Letter. 

The background assumption of the judgement seems to be that only some manifestations of “gender critical” beliefs are hostile to trans rights or transphobic (such as misgendering a colleague). In other words, the assumption is that the beliefs are not themselves trans-hostile or transphobic (and that anyone who describes them as trans-hostile or transphobic would be harassing those who hold these beliefs). This is why the main evidence used in the judgement that the Open Letter created a hostile environment for the Claimant was that the Claimant was not herself transphobic or hostile to trans rights. And what is the evidence for this? The evidence given is that the Claimant herself stated she was supportive of trans rights in a single lecture given to the Woman’s Place UK in 2019[11] and in one tweet. This rather flimsy evidence is the basis for the justification of the claim that the Claimant and the research network were not transphobic or hostile to trans rights and that anyone who made that claim was engaged in harassment against the Claimant for her “gender critical” beliefs.

Experts in the field of Gender Studies, feminist academics and equality and diversity professionals, are the very speedily dismissed by the judgement as making false statements and as defaming the claimant. A particular concern in the Phoenix judgement seemed to be the use of the terms “transphobic” or “trans-hostile” by colleagues who objected to the setting up of the research network. I think much of this concern is based on a failure to understand what these terms are doing or saying. They do not mean that an individual person feels animosity towards trans people. Like “homophobia” these terms describe effects more than intents – indeed “harassment” by definition is about effects more than intents. Many people who make homophobic or transphobic statements often preface these statements by stating they have nothing against gay people or trans people or even that they support them.

Take for example the Employment Tribunal brought by Kirstie Higgs against Farmor School (Case No: EA-2020-000896-JOJ). Higgs successfully appealed the earlier decision that her termination of employment was justified on the grounds of her protected beliefs as a Christian that you cannot change gender and that homosexuality is a sin. Higgs had shared posts on her private Facebook account claiming that “The LBGT crowd with the assistance of progressive school systems are destroying the minds of normal children by promoting mental illness.  Delusional thinking is a form of psychotic thinking, and we have professionals promoting it to our young kids.” In the judgement she is quoted as saying, “I don’t regret making the posts, it’s about the children in the primary school. I don’t have any issues with gay, lesbian or transgender people, I love all people.” The judge then took these statements at face value as if saying you are not homophobic or transphobic makes you not so.

In another Employment Tribunal, Samuel Jackson Versus Lidl (2020, 2302259/2019/V) the Claimant argued that he was wrongfully dismissed for refusing to apologise for making a racist statement, “Asians are Greasy.” He made a claim that he did not have to apologise as he was a Stoic and that Stoicism should be a protected belief. The judgement agreed:

From his description of the philosophy and of his own thought patterns, it may appear to an independent observer to be an emotionally narrow set of beliefs and indeed the Claimant said that it was inconsistent with Stoicism to display emotions. He described himself as not being a “consequentialist”, by which he meant that the consequences of what he says or does would not prevent him from saying or doing that thing. He told me that, “The realisation that the consequence of what I say would cause offence would not stop me from saying it”. Explaining further, he said: “In interpersonal relationships, it would not be the potential for offence that prevented me from saying something.”

Even though Jackson’s case was successful (despite its rather obvious caricature of Stoicism), it would be absurd to conclude that this makes the statement “Asians are greasy” any less offensive to Asian people. We would be quite entitled to call that statement racist even if it was judged to be a permissible statement for someone with the protected belief of Stoicism. Indeed, I would argue that the beliefs that lead some people to make offensive statements have little or no bearing on whether or not other people will find them offensive. To draw parallels, when a person states that homosexuality is a mental illness or a sin, that statement would not be any less offensive to lesbian and gay people if it was made because of a person’s religious beliefs. Or, when a person states that trans women are deluded when they say they are women, that statement would not be any less offensive to trans people if it was made because of a person’s philosophical beliefs.

The problem here seems to be that terms such as “racism” or “homophobia” or “transphobia” are being treated as slurs or insults. Indeed, in the Phoenix case, much seems to have been made of the fact that a colleague is alleged to have described her as “like a racist uncle at the dinner table.” I would accept that the claimant’s feelings were hurt by the comparison if it was made. I would also add that even racist uncles would probably be hurt by being called racist uncles. Neither racism nor transphobia should be understood as being about hurt feelings of those named as such. They are instead how we describe statements that position racial minorities or trans people in problematic ways – as dirty or as dangerous, for instance.

Nevertheless, an argument could be made that the setting up of the Research Network did not necessarily mean it would circulate problematic or offensive statements about trans people. Perhaps those involved are careful to manifest beliefs such as “sex is real” in ways that seem polite or reasonable. Immediately we have a clue here as to how offensive statements circulate by appearing as polite. Politeness can be a rather thin veneer (the word polite shares its roots with the word polish). Many statements that do not seem obviously transphobic or trans-hostile to people who are not trans or non-binary or at least aware of these issues, can be so.

For example, the judgement quoted from a witness who found the 2019 lecture by the Claimant “upsetting,” but quickly dismissed that response: “We considered the transcript of the talk…and there is nothing in the talk that we find that would be upsetting.” If they could not hear it, it does not mean it was not there.  When I listened to statements such as those provided by the Claimant in her 2019 lecture, I can hear not just what is said but what follows what is said. In this lecture, the Claimant contrasts the “structural harms” and “structural inequalities” of race, sex and class to the subjectivity of “mutable” gender. She suggests that trans activism is problematic because of how it has imposed “subjectivity” and “the new reality game” as the basis of politics: “the right of an individual to force social organisations and institutions to accommodate their ultimately mutable, changeable senses of their gendered self.”[12] In contrast she says she wants to emphasise the “importance of external reality,” “facts” as well as “expertise.” One might point out that sexual orientation is also about subjectivity and that many “structural harms” follow the failure to recognise lesbian and gay desires, relationships and families as being real and authentic. But such a point would interrupt the core distinction made throughout the lecture between the subjective and structural, which maps onto the more usual “gender critical” distinction between the fictional and real.  This might seem like a mere academic argument about terms, which should not be “upsetting” to academics who are used to arguing over terms. But those of us who know the debate also know how these terms are used. We know that some of the most problematic work continues to circulate because of how these terms are treated as is they are just an academic debate. Terms have real life consequences.[13]

In a follow up post, “Gender Critical Feminism as a Hostile Environment,” I will explore how seemingly neutral or inoffensive statements like “sex is real” are part of a wider web of speech acts that when pulled together would be best described as trans-hostile.  But let me share some preliminary thoughts here. Statements such as “sex is real” slide quickly into statements about how trans people are not real; that they are “deluded” or “disassociated” from reality (both these words are regularly used by “gender critical” feminists as well as other trans-hostile commentators). Statements that trans people are “deluded” are (or should be) understood as self-evidently hostile to trans people, suggesting trans people are mentally ill or are living inauthentically. Other statements turn that delusion into a danger, claiming that trans people are trying to force other people into accepting their beliefs about who they are. Statements such as these are (or should be) understood as self-evidently transphobic (in the sense of constructing trans people as dangerous, as people to be feared).

Take for example the work of Kathleen Stock whose articles are listed on the network’s website and who has been an expert witness on an earlier Employment Tribunal on “gender critical” beliefs.[14] In her book Material Girls, which is often described (at least by other “gender critical” commentators) as reasonable and “well-balanced,” Stock cites a blog that suggests that pronouns are a date rape drug.[15] The argument is that when trans women ask to be addressed as “she,” they confuse the senses, making cis women’s reactions sluggish. The writer of the blog claimed trans women intentionally use that sensory confusion to take advantage of other women, an explicit form of transmisogyny. Whilst Stock suggests this claim would be “fearmongering,” she lends it credibility by citing it as a source. She also sustains the core assumption that when trans women ask for their pronouns to be respected, their delusions are endangering others.

It could be argued that it is possible to make statements such as “sex is real,” without creating an association of trans people with danger and delusion. This possibility is often used as an excuse. But it is also more than that. It is turned into an instruction to treat such sentences as if they can be detached from the contexts in which they are made. Hostile environments are often reproduced by how we are asked to make light of individual statements, treating them as strays, cut off from a wider context. That is why when we refuse to make light of such statements, or detach them from this wider context, we hear the hostility, what these statements are being used to do.

And they are doing more than create sticky associations between trans people and danger. “Gender critical” journalist Helen Joyce recently argued that we should try to “reduce” the number of people who transition, because everyone who transitions is “damaged” and “a huge problem for the sane world,” whether they are “happily transitioned, unhappily transitioned or de-transitioned.”[16] The argument that “sex is real” becomes the basis of a call to “reduce” trans people, by making it harder for trans people to have access to what they need to live their lives on their own terms.

These arguments for “reducing” people who transition are not made by people who are at the fringe of an otherwise moderate moment. These are “gender critical” beliefs in action. Some of the most “polite” and “reasonable” members of the “gender critical” movement have been signatories on the Women’s Human Rights Declaration (WHRC), which calls for the “elimination” of “the practice of transgenderism” as well as the repeal of the Gender Recognition Act. Kathleen Stock, for example, has signed this declaration. I mention Stock here as she, like the Claimant, has stated she is not hostile to trans rights. We need to learn from the fact that it is possible to claim you are not hostile to trans rights whilst participating in a movement that has the explicit aim of removing them.

The language of “sex is real” is used in the very description of the core mission of the Open University research network, which is described as being concerned with “how sexed bodies matter,” and with critiquing “constraining stereotypes of gender.” Once you have entered the space of “gender critical” feminism, you learn to recognise how sex and gender are used like a map, how some people are positioned as in touch with reality (mattering as their terms matter), others as constrained by stereotypes (as deluded as their terms). Given the name of the network was the name of a movement which calls itself “gender critical,” which circulates many problematic statements about trans people as deluded, turning them into soundbites, colleagues had every reason to be concerned about its impact on LGBTQIA+ staff and students. In fact, I would argue they had a duty to be concerned! Under the Equality Act (2010), The Open University has a positive duty to promote equality for LGBTQIA+ staff and students. [17] One profoundly disturbing consequence of this judgement is that it has undermined the university’s capacity to carry out that positive duty. Alternatively, we could argue that The Open University has not fulfilled its obligations under the Equality Act (2010) by how it handled internal grievances against those who signed the Open Letter, by a seeming failure to give support to the witnesses during the Employment Tribunal itself, and by the quick and uncritical acceptance not only of the judgement but how it has been subsequently framed by the media.

There was yet another problem with the setting up of this research network, which in fact can be related to the very status conferred to “gender critical” beliefs as protected. The second Grainger criterion for a belief to be protected is that it has to be so certain that it would not be amended by any new developments or information. As Keith Patton notes, this criterion has its origins in a pre-Grainger case, McClintock v Department of Constitutional Affairs ([2008] IRLR 29, [2007).[18] The claimant was a magistrate involved in making decisions about the adoption of children. He asked to be excused from cases that involved the adoption of children by same sex couples on the grounds that there had been insufficient research into the effects of such adoptions on children. When the Respondent declined his request, he claimed that this amounted to discrimination on the grounds of a protected belief. But the Claimant also indicated that he was open to the possibility that further research might assuage his concerns. Patton explains why this indication was so decisive: “Mr McClintock’s belief was not immovable in all circumstances. He was open to the possibility that further research may assuage his concerns. On this basis, the EAT concluded that this was not a protected belief.” In other words, for a belief to be protected it needs to be held so deeply by a person such that they would not be swayed by any future developments.

Those with “gender critical” beliefs have successfully claimed these beliefs should be given the status of protected. But that they are protected has given us evidence of why “gender critical” beliefs are not an appropriate basis for a research network. Research is predicated on open questions, on not knowing the answers, and on being open to learn from new developments. This research network based on a protected belief is, by definition, not asking open questions about sex, gender and sexuality. That a research network is organised around “gender critical” beliefs demonstrates that any research coming out of such a network will be used instrumentally to affirm already existing set of beliefs. Hence the Claimant’s own research confirmed her pre-existing belief that, to use her terms, “male bodied” trans women should be excluded from single sex services. Note as well “gender critical” scholars often critique the Stonewall position of “no debate,” to suggest we have not been allowed to have a debate about sex and gender. But Stonewall’s “no debate” is a specific reference to trans people not having to debate who they are or how they understand themselves. As Judith Butler makes clear in their recent book Whose Afraid of Gender? many feminist, trans and queer scholars, have been having an open debate about sex and gender for decades.[19]

We can return to how those with “gender critical” beliefs tend to present those who oppose these beliefs as holding onto a specific idea of “gender identity.” Anyone familiar with the fields of Gender Studies, Queer Studies and Trans Studies will know that many trans-inclusive feminist and trans scholars have also offered strong critiques of this very idea of gender identity, just as they have offered critiques of the sex/gender distinction and of the idea of biological sex. Feminist critiques of biological sex are rarely acknowledged by “gender critical” feminists because the very fact of those critiques cast doubt on the claim that the problematising of sex has its origins in the movement for trans rights or in “postmodern queer theory” to quote from another “gender critical” academic Alice Sullivan.[20] In The Feminist Killjoy Handbook, I suggested that feminist critiques of sex are erased by “gender critical” feminists because of how they would problematise the foundational assumption not only of natal sex but of sex as natal to feminism.[21] So, really, it is not that “gender critical” scholars are themselves having a debate about sex and gender. They are simply restating the same set of beliefs (and obscuring so much feminist work whilst doing so). Just as protected beliefs are not a good basis for research, they are not really up for debate either.

Those of us who challenge these “gender critical” beliefs are not understood as exercising our free speech but as censoring or even harassing those who hold these beliefs. One is rather reminded of the Tory government, which can shift from a “there’s a free speech crisis” in universities to a “let’s call those who express views that are in opposition to our beliefs or traditions ‘extremists’” (with reference to those protesting for Palestinian freedom and against the genocide in Gaza) without so much as a pause. In an interview from 2021, Jo Phoenix talked about her hopes in making a case against Open University for constructive dismissal. She said she wanted “vexatious complaints” and “protests about transphobia,” to be treated as “harassment, full stop.”[22] She adds that such a move will enable “university managers,” to “nip all of this shit in the bud.” The implication of this interview is that any complaints about transphobia or indeed any use of the word transphobia should be treated as harassment. For many of us, such arguments translate as follows: some people will be free to express views we consider transphobic but we will not be free to express our views that they are transphobic.

Consider how Kathleen Stock is typically represented as having been forced out of her job by student protests or by trans activists. Stock was publicly supported by her vice chancellor on the grounds of protecting her free speech. In one instance, a PhD student from another university was scheduled to give a talk at the same time as Stock. The student was going to offer a critique of “gender critical” feminism including Stock’s work. Stock cancelled her own talk. “Gender critical” academics Judith Suissa and Alice Sullivan describe these events in the following way, “when Stock was invited to give a lecture on aesthetics at her own institution, graduate students invited a twitter-troll known primarily for her obsessive interest in Stock to give a talk denouncing her at the same time. Stock told The Times, ‘Forty faculty attended. I was very upset.’”[23] Not only was the PhD student simply dismissed as a “twitter-troll,” but that she was invited to speak and that people attended her talk was called “bullying.” The student’s own arguments are not represented as exercising her own free speech but as cancelling Stock’s (even though she technically cancelled herself).

The dismissal of critiques of gender critical beliefs as harassment is exercised in the actual judgement. The judgement is thus an import of an already-told, much-rehearsed story that gets told across diverse media about how “gender critical” feminists being hounded out of their jobs. Imports become exports. Many of the people who have written to me about being harassed by colleagues who are part of the “gender critical” feminist movement, have noted how these colleagues typically use the media to extend that harassment by telling the story of what happened, which they alone get to tell at least publicly, whilst using these same stories to position themselves as having been censored.[24] I noted in my 2021 book Complaint! that who controls the story of a complaint often repeats who controls the situation that the complaint is about. [25]

The dismissal of objections to the network as harassment of a person with “gender critical beliefs” is not only a failure of judgment but a sign of the success of “gender critical” feminism as a PR machine. And so, with the repetition of this story of censorship comes an increase in profoundly offensive speech acts about trans people as dangerous and deluded that many people will find “profoundly offensive,” to quote again from the Forstater ETA. Any objections to the network, or any critiques of the work of scholars attached to the network, can then also be used as evidence in future cases brought to Employment Tribunals.[26]

I opened this post by suggesting that how Employment Tribunals are dealing with cases of protected beliefs could threaten the Equality Act (2010) itself with its clear statement of “a positive equality duty.” I would argue that the success of “gender critical” feminists is in part because of the central idea that biological sex is immutable, what cannot be changed, is very attractive to people with a conservative “anti-woke” agenda. In other words, the successes of “gender critical” advocates at Employment Tribunals are not feminist successes; they might even signal the opposite of a feminist success – becoming the basis for an ever-tightening model of sex, reproduction, body, nature and culture that could end up eroding hard-fought-for rights including to bodily autonomy. The very identification of diversity and equality as “woke” is an argument that change is being imposed or that beliefs in change (that sex can be changed, or bodies, or marriage, or families, or institutions or history) are being imposed. Conservative and anti-woke commentators are thus now increasingly targeting equality and diversity initiatives in the UK and elsewhere. Queer rainbow flags, the use of pronouns in signatures, critical race theory, Gender Studies, diversity statements and gender inclusive language are all routinely dismissed and described as “ideological capture” and as “compelled speech.”[27]

Take another Employment Tribunal case brought by Sean Corby (2023, 805305). His employer, ACAS, had ordered him to remove comments he had made criticising Critical Race Theory on social media. Corby’s argument was that “critical race theory” encouraging division by branding white people racist. The tribunal unanimously concluded that Corby’s beliefs are “worthy of respect in a democratic society,” even “if they are not universally shared and were objected to by some of the claimant’s colleagues.” Mr Corby said of the judgement: “Colleagues who’d never met me and knew nothing about me or my life targeted me and called me a racist. This caused me a great deal of distress.” He added: “I’m delighted we have made a stand and taken a step to embedding in the workplace a more conciliatory and harmonious approach to dealing with issues around race.”

So, that is where we are: “opposition to critical race theory” is now a protected belief. This is despite how Corby totally misrepresents (or grossly caricatures) “critical race theory,” as being about segregation or about judgements about white people being bad. In fact, Corby reproduces almost exactly the misrepresentation of “critical race theory,” by many government ministers, who now use it as code for any work that reflects critically on Britain’s colonial past or that aims to address institutional or structural racism.  It seems that the demonisation of “critical race theory,” in the UK is following a similar trajectory to the US. As Black feminist scholar Kimberlé W. Crenshaw has noted, “For more than 30 years, scholars have employed critical race theory as an analytical tool. The right had rebranded, it as the new racism, as wokeness run amok, as a threat to innocent schoolchildren and as a stalking-horse for the demise of ‘Western civilization’ itself. The theory has become the target of coordinated efforts to stigmatize and erase generations of antiracist knowledge, advocacy and history.”[28]

In the UK, we are also witnessing coordinated efforts to stigmatize those who are fighting for equality. We need to acknowledge that Employment Tribunals are being used cynically to advance such an agenda. Conservative scholars such as James Murray and Eric Kaufman who use “anti-woke” as their primary platform, have suggested that Employment Tribunals could be brought to make “anti-woke itself” a “protected philosophical belief.”[29] Nurse Amy Gallagher is currently crowd-funding for her campaign “stand up to woke,” against her employer, the NHS.[30] Gallagher suggests woke ideology was forced on her and that it is “racist to talk about white people as a problem, presenting an ‘ideology’ as if it was true.” Much of what Gallagher references as “woke ideology” – including anti-racist training – are activities that came about at least in part from developments in equality frameworks, that path that has been laid out since the 2000 Amendment to the Race Relations Act, referenced in my introduction.

The campaign to make “anti-woke” a protected belief is thus, in effect, a campaign against equality and diversity initiatives. Many of us, myself included, have offered critique of those very initiatives for what they fail to do. It is not the time to abandon these critiques. Nevertheless, we need to understand how and why equality and diversity initiatives are being targeted through the use of “protected beliefs.” In effect, opposition to the Equality Act (2010) itself could become a “protected belief,” thus dismantling the very apparatus intended to make workplaces more equal for all. That is why those of us who are committed to creating more equal institutions, must do what we can to analyse and problematise these recent cases, tribunals and reports that are represented as “gender critical” successes and which are, in truth, creating an increasingly hostile environment for trans and queer people.[31]

Notes

[1] This post was in reference to Mr Thomas Richardson versus J.D. Wetherspoon (Case Number 3313748/2022). Mr Richardson, who described himself as Christian and Anti-Woke has been sacked after making offensive comments such as suggesting to a lesbian that “god will forgive you.” The original case was for discrimination on the grounds of religion and belief as well as disability discrimination. The former was withdrawn and the latter failed. The Tribunal stated, “Were an employer to fail to take action when employees have complained about being on the receiving end of such comments, they would be likely to find themselves facing sustainable complaints of discrimination on the part of the complaining employees.”

[2] I am using the exact language of the Act here: https://www.legislation.gov.uk/ukpga/2000/34/introduction/enacted. Many public sector employers used the term “race equality” to summarise the positive duty. The Equality Act (2010) then introduced the “Public Sector Equality Duty,” which means that public authorities must “eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act” and also “advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it” and “foster good relations between persons who share a relevant protected characteristic and persons who do not share it.” (https://www.legislation.gov.uk/ukpga/2010/15/section/149). See Ahmed, Sara (2012), On Being Included: Racism and Diversity in Institutional Life. Durham: Duke University Press for further discussion.

[3] In a follow up post, I will draw on this material to explore how “gender critical feminism” operates as a hostile environment. In this post I focus only on readings of judgements from this and other ET and ETA’s. In the next post, I will draw on empirical material to show how many people have been harassed and bullied because they have objected to “gender critical” feminism – leaving many academics as well as administrators to leave their posts and to students leaving programmes. That, I will show, is the censored story.

[4] https://ounews.co/around-ou/ou-speaks-out/a-statement-from-professor-tim-blackman-vice-chancellor-of-the-open-university-regarding-the-recent-employment-tribunal-judgment/

[5] This is just one example of the reporting: https://www.christian.org.uk/news/open-university-prof-hounded-out-of-job-for-upholding-biological-sex-wins-case/.

[6] I put “gender critical” in quotation marks, because as I pointed out in a previous post (https://feministkilljoys.com/2021/10/31/gender-critical-gender-conservative/), those who use this term to describe their beliefs are often gender conservative because of their failure to be critical of the category of “sex.”

[7] This contrast between “gender critical” beliefs and “gender identity” beliefs was also made by the Appeal Judge in The Forstater case (UKEAT/0105/20/JOJ). My comments are not intended to dismiss all uses of this term. I rather question how it is used to allow this case to be framed as a dispute over beliefs. Note: I am aware that the Equality Act defines a protected belief in terms of those who have it or “lack” it. But when protected beliefs are offensive to those with protected characteristics, my own view is that it is morally wrong to frame the situation as a dispute over beliefs.  So, for example, if someone was deemed to have a protected religious belief that homosexuality is unnatural, it would be wrong to characterise other people in the work place as having a protected view that homosexuality is not unnatural. Why? Because those with the protected characteristic of homosexuality, would then be defined in relation to beliefs that are hostile and stigmatising.

[8] https://www.theguardian.com/commentisfree/2024/jan/28/jo-phoenix-open-university-court-victory-gender-sex-based-womens-rights

[9] It could be simply argued that the judgement in favour of the Claimant is sufficient to explain the sympathetic presentation of her case. There have been other Tribunals where the use of sympathetic description (or unsympathetic description) has caught my attention. One example is Weeks Versus Newham College (2012) where the Claimant is treated by the Judge in a way that seemed very hostile and inappropriate (for example, by attributing malevolent intent to her complaints and by the apparent assumption that if a person has “a litany of complaints” that is evidence they were the problem). This decision stood out to be in part because of how the Judge’s definition of “hostile environment” has since been quoted by a number of other cases. I also read media reports about conduct of a senior lecturer at Newham College in 2013 that strengthened my own sense from reading the appeal that the Claimant was treated unfairly and that there was a hostile environment at the college that was sustained by the judgement. An additional problem in Phoenix versus The Open University is that the harm experienced by Witnesses for the Respondent, which is not even acknowledged by the judgement, is fundamentally relevant to it. Not acknowledging the harm experienced by Witnesses meant that the context that led them to write and sign the Open Letter was not properly acknowledged.

[10] For a very clear analysis of the implications of the Forstater Employment Appeal Tribunal see Jess O’Thomson (2022), “Don’t Overblow Forstater” https://transsafety.network/posts/dont-overblow-forstater/.

[11] I was struck in listening to this lecture that when the Claimant repeated the statement that she was supportive of trans rights, she said “again, for the record.” It gave me the impression that the statement was being made in order that it could be used as evidence she was supportive of trans rights. Note Woman’s Place (UK) is widely regarded by many feminist and equality and diversity practitioners as a trans-hostile organisation, myself included.

[12] Note here the use of the word “force” for a process that we would ordinarily be described as recognition. In A Complainer’s Handbook, I consider how much diversity and equality work is described as “forced change.” So, “we” are forced to accept gay relationships, queer families, use pronouns, people who are different to “us,” etc. Those who need institutions to change in order to be accommodated are often judged as being forceful, as forcing ourselves in.

[13] I have also listened to the podcast on Savage Minds which the Judge concluded was not trans-hostile nor offensive. The judge concluded that a transmisogynist slur was not a transmisogynist slur because it was not obviously directed towards trans women. My own view, is that this is a misunderstanding of how slurs work – they do not have to be directed toward the group they are mostly used against to be offensive to those groups or to others. I found the podcast to be offensive not only for the use of a transmisogynist slur, the smug and disparaging tone used throughout, punctuated by jokes and laughter, but for the caricaturing of the projects of diversity and inclusion. But at least it was an opportunity to hear just how “gender critical beliefs” lead to a deeply conversative institutional politics. The Claimant suggests that all employees of an institution are “by definition” included and that inclusion is just about “feeling included” thus ignoring decades of feminist anti-racist, disability justice as well as LGBTQIA+ research on the means and mechanisms whereby organisations exclude some people from participation. The Claimant suggests that welcoming trans people as well as “not employing just old white men” or getting Black and Minority Ethnic people to work with us (she gets her words wrong here, first using British rather than Black, just as she mixed up the words diversity and divergence) is just a managerial project of “squaring circles,” “chasing EDI credentials” and “feeling good.” The managerial misuse of diversity and inclusion (long documented by feminists of colour) is thereby conflated with the political struggle to build more accommodating institutions by minoritised groups ourselves. I think we need to interrogate especially the ways in which “gender critical” contributors now use “feelings” almost as a code word, to dismiss so much of our collective work. The critique of “gender identity” as just about feelings becomes a critique of equality and inclusion as just about feelings. Note when people of colour talk about exclusion we are often addressed as if we are talking about our feelings (that we feel excluded rather than are excluded). We can see how (as well as why) “gender critical” feminists participate in right-wing attacks or diversity and equality initiatives whether by framing them as just about people’s “feelings” rather than facts or as “woke”. See also Kathleen Stock on “The Woke Tide”: https://www.thetimes.co.uk/article/turn-woke-tide-leave-many-stranded-transgender-cass-report-3xh5kwm6x.

[14] I may return to how Stock used her position as expert witness in the following post. Stock makes confident but false claims about how racist speech in order to legitimate her confident but false claims about the neutrality of statements about trans people. The judge then treated these false but confident claims as if they were true.

[15] Stock, Kathleen (2021). Material Girls: Why Reality Matters for Feminism. Fleet: London.

[16] These comments were made during an interview with Helen Staniland. See https://www.youtube.com/watch?v=8_u1MQFjxvI.

[17] I am referencing the positive equality duty in relation to the LGBTQIA+ even though this network or group does correspond to one protected characteristic as defined by the Equality Act (2010) but is a combination of many. I think one of the most dubious claims made by Akua Reindorf in her 2021 report for Essex University is that Stonewall’s schemes are based on the law as it would like it to be, not what it is, because the Equality Act does not mention “gender identity” as a protected characteristic (https://www.essex.ac.uk/-/media/documents/review/events-review-report-university-of-essex-september-2021.pdf). It is a dubious but much cited claim. Why dubious? Those who understand themselves as members of a group with a protected characteristic do not and will not use the exact language used by the Act itself to define themselves (many of us who have a protected characteristic as a member of a racial group don’t think of ourselves as “racial groups,” which is the language used in the Equality Act). Employment Tribunals have already shown that the attempt to delimit the protected characteristic of “gender reassignment” needs to be problematised. Take for example Rose Taylor’s case against Jaguar in 2017 for discrimination. Rose is non-binary and had raised a complaint with her workplace HR after two of colleagues referred to her as “it.” She was told by human resources, “well what else would you want them to call you?” The company had argued that her identity as non binary did not fall under the Equality Act protected characteristic of gender reassignment.  As part of the ruling, the tribunal found that “It was very clear” that Parliament “intended gender reassignment to be a spectrum moving away from birth sex, and that a person could be at any point on that spectrum… it was beyond any doubt that somebody in the situation of the Claimant was (and is) protected by the legislation because they are on that spectrum and they are on a journey which will not be the same in any two cases.” https://www.gov.uk/employment-tribunal-decisions/ms-r-taylor-v-jaguar-land-rover-ltd-1304471-2018. Returning to the uses of the Reindorf report, I think one of the reasons it is much cited is because of the effort to discredit Stonewall for their leadership on trans rights. One final point: one issue is how each of these reports informed by “gender critical” beliefs is that they then get cited as evidence by other reports written by other authors with “gender critical” beliefs. This creates a self-referential system, that gives the impression of rigour and scholarship without involving very much of either. It also creates the impression of a much wider consensus than actually exists.

[18] Keith Patton (2024). “Protected Beliefs Under the Equality Act,” Industrial Law Journal, dwad033, https://doi.org/10.1093/indlaw/dwad033.

[19] Butler, Judith (2024). Whose Afraid of Gender? Allen Lane: London.

[20] Sullivan (2022). ‘Why Surveys should not Conflate Sex and Gender Identity”. https://discovery.ucl.ac.uk/10093735/1/Sullivan_Sullivan2020SexandtheCensusIntlJnlSocResMethods.pdf. As this piece progresses, Sullivan uses more and more inflammatory and hostile language. She ends with the statement, “they are coming for our questionnaires.” The implication is that trans people (and queer theory) are stealing sex (and our data).

[21] Ahmed, Sara (2023). The Feminist Killjoy Handbook. London: Allen and Unwin. pp.69-72.

[22] Interview is available here: https://www.youtube.com/watch?v=AR8fJH7BBlc

[23] Suissa and Sullivan (2002). “How can universities promote academic freedom? Insights from the front line of the gender wars.” https://onlinelibrary.wiley.com/doi/full.

[24] I will discuss examples of how this works in a follow up post. The challenge here is to explain the mechanism whilst preserving anonymity of sources, which is a challenge given the high-profile nature of some of the commentators involved.

[25] Ahmed, Sara (2021). Complaint! Duke University Press: Durham, p.128.

[26] Since the publication of the decision, there have been a number of what I would call “veiled threats” on social media made by those involved in the “gender critical” movement to those who object to gender critical beliefs, implying they can or will or should be taken to Employment Tribunals.

[27] How “gender critical” commentators describe trans rights (and specifically Stonewall) as ideological capture reminds me of how anti-multicultural and anti-immigrant commentators refer to the “race equality industry.” These terms are used to imply equality agendas are really the capturing of policy by a powerful elite rather than a means to redress inequalities. In fact, I would describe “gender critical” feminism itself is an example of ideological capture – a coordinated movement trying to dismantle rights of trans people, enabled in part by key appointment of people with “gender critical” views in government and bodies such as the EHRC.

[28] https://www.latimes.com/opinion/story/2022-01-17/critical-race-theory-martin-luther-king

[29] See https://thecritic.co.uk/being-anti-woke-as-a-protected-philosophical-belief/

[30] See: https://standuptowoke.com/

[31] I know so many feminists who are alarmed by this campaign against trans rights as well as by the use of biological terms to describe social and political rights, but are reluctant to say or do anything publicly not because of “a trans lobby,” which amost everyone knows is a fantasy with a function, but because they know that to do so is to risk being targeted. It is the connections between “gender critical” academics and key stakeholders in media and government that is leading to the marginalisation of other more critical feminist voices. We need to share the task of critiquing “gender critical” feminist claims the best we can. But critique these claims, we must.