Intolerance in Academia

Phoenix v The Open University

Professor

Jo Phoenix

was the Chair of Criminology at the Open University from 2016 until her resignation in December 2021. Her academic research concerns women in the criminal justice system, inspired by her own experience as a survivor of sexual violence and rape. She holds what could be described as standard gender critical or sex realist views as per Forstater, tied to the reality, immutability, and importance of biological sex, which should not be conflated with gender identity. Specifically, she believes that:

“biological sex is real, that it is important, that a person cannot change their biological sex, and that sex is not to be conflated with gender identity. Sex is immutable and biological sex and gender identity are entirely different things and that there are occasions when biological sex is more important than gender identity, particularly where women are vulnerable to male violence and / or have been subjected to male violence. For example, she believes that male people should not be housed in female prisons, irrespective of how they identify.”^[2]

While Professor Phoenix holds these beliefs, the Tribunal concluded that she “was not a campaigner on gender critical issues, she did not invite consternation and antagonism.” She was, and remains, a scholar. Academics will often have views about a rage of socially or politically salient topics. One of the core justifications for academic freedom is to protect academics from undue attack when they apply their expertise to those topics, drawing upon their experience and knowledge to inform what can be described as expert views.

It is a common misconception that academics are expected to remain neutral between all competing views on a contentious topic and that anything less than perfect neutrality is evidence of bias or prejudice. This misconception simply misunderstands what bias and prejudice are. They arise from pre judgement; where one forms a conclusion before knowing or considering all of the facts or relevant arguments. An academic forming an expert view on topics such as male violence or sex-separated prisons, after applying their knowledge and expertise, is the exact opposite of bias or prejudice. Academic freedom would be practically nugatory if academics were expected to remain neutral as between competing social or political controversies.

The importance of academic freedom is that it protects academics when they engage in research and express their informed expert views. It does not protect conduct that does not meet minimum standards of scholarship or which amounts to unlawful conduct such as harassment and discrimination against colleagues.

On 16 October 2018, during the UK government’s consultation on reform of the Gender Recognition Act, the Guardian published a letter signed by Professor Phoenix and 53 other academics which raised concerns about the introduction of a policy of self-identification of sex. Two days prior to this, Dr Leigh Downes, formerly known as Dr Julia Downes, a Senior Lecturer in Criminology had sent an email to all staff in the department asking for involvement in putting together a collective response to the government consultation that was positive of trans rights. The email also contained guidance for academics responding to the GRA provided by Dr Ruth Pearce which included commentary that the Tribunal concluded had portrayed opposition to the Gender Recognition Act as “anti-trans” and “hostile to trans people” and associated those who objected to self-ID with anti-abortion American fundamentalist groups and the far right.

Professor Phoenix interpreted this email as requesting an institutional response to the public consultation and she advised against that, noting her position that opposition to the GRA was not transphobic and that the GRA should not be seen as the only way to correct the injustices experienced by trans people. Prior to the publication of the Guardian letter, Phoenix’s gender critical views were not publicly known.

In response to the Guardian letter, Dr Christopher Williams, Senior Lecturer in History and University and College Union (UCU) representative, sent an email to Dr Helen Bowes-Catton, lecturer in Social Research Methods in the Graduate School, expressing deep concern that Professor Phoenix had received consent to conduct research on “children and transgenderism v lesbian erasure”. He was so concerned that he stated his intention to contact the LGBT centre in the hopes of getting an injunction to stop Professor Phoenix from conducting this research. Under cross-examination, however, Dr Williams admitted that he was unsure whether Professor Phoenix had ever said that she was doing research into “children and transgenderism”. The Tribunal therefore concluded that there was no evidence that Professor Phoenix was doing or planning to do any such research and that Dr Williams was “displaying an irrational fear and was hostile to the Claimant because she had gender critical beliefs”.

Most of the witnesses in this case were academics, described by the Tribunal as “professionals who have been trained in the methodology of research and presentation of fact and analysis producing argument.” There was therefore an expectation of “a certain basic level of rigour in presenting the evidence before the Employment Tribunal” which for several academics, was not met.

By March of 2019 academics at the Open University associated with the Harm and Evidence Research Collaborative had decided to cancel a conference paying tribute to Professor Joe Sim, a criminologist at the University of Liverpool. Their statement said that the reason for the cancellation was because “the event had been hijacked into being about one kind of controversy, transgender issues … when what we had planned was to focus upon another kind of controversy: abolishing prisons and developing alternative forms of justice.” The Tribunal found that this had arisen because an academic associated with the Centre for Crime and Justice Studies, Richard Garside had published an article expressing sex realist views in the context of transgender prisoners in female prisons, leading to other academics feeling the need to take “direct action” to oppose Garside’s participation in the conference.

The Tribunal concluded that the decision to cancel the conference did not follow the requirements set out in the OU’s Code of Practice for Events and that was because the organisers did not want to continue with it once it became controversial. In particular, it concluded that Dr Deborah Drake, Senior Lecturer in Criminology and Head of Department at the time, had given inconsistent evidence as one of the organisers of the conference. She had stated that there was a need to make a quick decision which the Tribunal rejected, concluding that there was no evidence that any effort was made to find alternative speakers and that the decision to cancel the conference was to avoid association with gender critical views and the perceived reputational risk arising from that.

Shortly following the cancellation of the conference, Professor Phoenix resigned from the Harm and Evidence Research Collaborative in protest, having concluded that this was an absolute breach of academic freedom and a clear sign that there would be a push against academics voicing opposition to self-ID. She saw this as a moment of clarity and hostility towards opposing views, shutting down any ability to open a discussion within the department. The Tribunal agreed that the cancellation of the conference was a breach of academic freedom, motivated by hostility towards gender critical beliefs from some members of the Harm and Evidence Research Collaborative.

In April 2019, Professor Phoenix gave a talk at an event organised by Woman’s Place UK on the topic of trans rights, sex-based rights, and academic freedom where she mentioned the cancellation of the conference and expressed her view that this was a curtailment of academic freedom. The next month, Dr Downes, the academic who initially sought a pro-self-ID response to the government consultation from the department, emailed Professor Westmarland, the deputy-head of the department a link to the talk which upset and annoyed her. The Tribunal concluded that Professor Westmarland’s evidence as to her upset misquoted Professor Phoenix, taking her words out of context and selectively editing them. Dr Downes, after watching the talk, sent an email to Professor Westmarland stating “I watched it yesterday and had to take a walk. I found it very upsetting. Been a while since I cried at work.” The Tribunal considered the (unedited) transcript of the talk and concluded that “there is nothing in the talk that we find that would be upsetting”.

In June 2019, Professor Phoenix, along with other academics, signed a letter published in the Sunday Times raising concerns about the relationship between Stonewall and UK Universities via the Stonewall Diversity Champions programme. Dr Downes then sent an email to Professor Westmarland and Dr Drake, the head of department, raising concern about the letter “as this contradicts our institutional commitment to equality and diversity”. Shortly after this, Dr Drake sent an email to a colleague noting

“I wanted to say I think it's problematic/scary/interesting that the 2 OU members of staff who signed the Times letter are in departments where there is a non-binary person (my dept) and a trans woman (Philosophy) and they're both in FASS. It is just so embarrassing and unsettling. Many in my team are upset...... It just feels so wrong and nothing whatsoever to do with academic freedom”.

The Tribunal concluded that this was evidence that Dr Drake thought that Professor Phoenix should not have signed the Times letter and regarded her gender critical views as problematic and scary. In addition, the Tribunal found evidence that Dr Downes had asked Dr Drake, in her capacity as head of department, to take punitive measures against Professor Phoenix for signing the Sunday Times letter.

In October 2019, Professor Phoenix had a meeting with Professor Westmarland where Professor Westmarland said “having you in the department was like having a racist uncle at the Christmas dinner table.” The Tribunal found that this was Professor Westmarland effectively castigating Professor Phoenix for expressing her gender critical or sex realist views. This caused extreme distress to Professor Phoenix and the Tribunal concluded that Professor Westmarland knew this because when Professor Phoenix began to cry, she recommended counselling.

The Tribunal did not accept Professor Westmarland’s evidence that this meeting was prompted by other academics in the Harm and Evidence Research Collaborative complaining about Professor Phoenix because there were no emails to that effect prior to the initial request for a meeting and it was only after the initial request was sent that Dr Drake, the head of the department contacted members of HERC proposing a meeting to discuss Professor Phoenix’s talk. The Tribunal concluded that this meeting was instigated by Professor Westmarland because she did not like Professor Phoenix expressing her gender critical views.

The Tribunal made further findings of fact relating to how Professor Phoenix was treated by her colleagues at the Open University. In a departmental meeting following the cancellation of an event Professor Phoenix was scheduled to speak at for Essex University, Professor Westmarland minimised the significance of being cancelled in academia. The Tribunal did not find Professor Westmarland’s explanation of this credible, and did not believe that she did not recognise the significance of cancellation or the difference between a seminar being cancelled and an academic being canceled. At the same meeting, when other colleagues were praised for their research, Professor Phoenix’s successful grant capture of $1 million was not praised.

By this time, Dr Downes’ influence upon the department in Equality, Diversity and Inclusion (EDI) issues was significant. The Tribunal found that the department would look to Dr Downes as the lead for EDI for a steer as to how it should treat gender issues. Dr Downes admitted in evidence to believing that gender critical views were inherently potentially transphobic. The Tribunal concluded that Dr Downes believed that “gender critical beliefs were harmful to trans and non binary people and considered such beliefs transphobic”, and that “the use of the term transphobic in respect of gender critical views is being used as a term of insult by Dr Downes”.

Shortly after the departmental meeting where Professor Phoenix reported her cancellation from the University of Essex and her capture of a large grant to research transgender issues, Dr Drake, the head of the department, approached Dr Downes to unload her frustration. The Tribunal found that Dr Drake had been upset by Professor Phoenix taking time in the departmental meeting to talk about her gender critical research, her cancellation at Essex, and her experience of being called a transphobe because of her gender critical views. The Tribunal found that this conversation prompted a call to Professor Phoenix from Dr Drake telling her that she was not permitted to speak to the department about her research, the treatment she had experienced at Essex, or accusations that she was a transphobe. At this stage, Professor Phoenix was isolated within her department.