Conflicting beliefs and balancing rights: lessons from Meade and Phoenix

1 Mar 2024

Kerenza Davis and Katie Mahoney

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This article was first published by ELA Briefing.

Since Forstater established that gender critical beliefs are protected under s.10 of the Equality Act 2010 (ie the belief that biological sex is real, important and immutable and not to be conflated with gender identity), there has been a series of successful claims for discrimination by gender critical claimants: Forstater itself, Bailey and Fahmy. January saw the publication of two further judgments that continued this trend: Meade and Phoenix.

Meade: the facts

Rachel Meade worked for Westminster City Council (WCC) as a social worker. In June 2020, one of her colleagues reported her to Social Work England (SWE) (her regulator) for posting ‘transphobic’ content on her Facebook account. Ms Meade’s posts included (a) a petition to the International Olympic Committee that male athletes should not compete in female sport; and (b) a petition to maintain sex-based protections set out in the Equality Act 2010 (EqA), including female-only spaces such as changing rooms and hospital wards. Ms Meade also shared articles from mainstream media on the topic and a link to satirical post stating: ‘Boys that identify as girls go to Girl Guides. Girls that identify as boys go to Boy Scouts. Men that identify as paedophiles go to either.’

Ms Meade’s posts were made on her private Facebook account, which was open to a small number of personal friends. Nonetheless, SWE placed Ms Meade under a ‘fitness to practise’ investigation in response to the complaint. This culminated in a formal sanction, which was later withdrawn. Due to this sanction, WCC started its own disciplinary investigation. Ms Meade was suspended for a year for potential gross misconduct and was eventually given a final written warning, which, again, was later withdrawn.

Phoenix: the facts

Joanna Phoenix worked at the Open University (OU). In 2018, the Guardian published a letter signed by Ms Phoenix and 53 other academics that expressed concern about self-identification (ie the proposed policy that people be able to change their legal sex without any external medical or administrative requirements). In 2019, Ms Phoenix had been due to speak at a conference at the University of Essex, which was cancelled because students threatened to barricade the room in protest. She felt the conference should not have been cancelled and viewed this as a violation of academic freedom. Ms Phoenix resigned from a research panel, the Harm and Evidence Research Collaborative (HERC) in response.

In 2019, Ms Phoenix gave a talk at a Woman’s Place UK event on the topic of trans rights, sex-based rights and the curtailing of academic freedom, in which she mentioned the cancellation of the conference. She also signed a letter in the Sunday Times that raised concern over, among other things, the relationship between the LGBTQ+ charity Stonewall and UK universities. Ms Phoenix alleged various colleagues displayed hostility to her in response to these activities, saying that one told her that having her in the department ‘was like having a racist uncle at the Christmas dinner table’, one had likened her to Charles Murray (a controversial sociologist who argues racial inequality is partly attributable to biological differences between the races) and others had responded with silence to announcements of her achievements.

In 2021, Ms Phoenix co-launched the Gender Critical Research Network (GCRN), a research group focused on the importance of sexed bodies in different academic disciplines. An open letter protesting the launch was signed by 368 OU staff and postgraduate researchers. It called on the OU’s Vice Chancellor to withdraw support for the GCRN and affirm its position as a trans-inclusive employer. Although the letter was addressed to the Vice-Chancellor, it was saved as a publicly accessible Google Doc and tweeted out by some of the signatories, including Ms Phoenix’s colleagues. Other groups associated with the university also published statements condemning the GCRN as transphobic and/or seeking to disassociate themselves from it.

Ms Phoenix resigned from the OU in late 2021 claiming constructive dismissal.

The judgment: Meade

The tribunal in Meade found that subjecting Ms Meade to a disciplinary process, suspending her and sanctioning her for Facebook posts constituted acts of harassment by WCC. It also found that SWE had harassed Ms Meade by subjecting her to a prolonged investigation, sanctioning her and referring her to a fitness to practice panel. Within the disciplinary process (which was found to be harassing as a whole), the tribunal found that the specific acts of labelling Ms Meade’s Facebook posts as transphobic and suggesting Ms Meade might pose a risk to vulnerable service users constituted individual acts of harassment. In this regard, the tribunal commented: ‘We consider it wholly inappropriate that an individual such as the claimant … should be labelled discriminatory, transphobic and to pose a potential risk to vulnerable services users. That in effect equates her views as being equivalent to an employee/social worker espousing racially discriminatory or homophobic views.’

The judgment: Phoenix

The tribunal in Phoenix upheld various claims for direct discrimination and harassment, as well as finding that Ms Phoenix had been constructively unfairly and wrongfully dismissed and subjected to post-employment victimisation.

In particular, the tribunal found that the publication of the open letter and various other tweets and public statements condemning the GCRN were acts that had the purpose (and effect) of creating a hostile environment. The tribunal also found that it was an act of harassment for Ms Phoenix’s colleagues to have likened her to someone who was perceived as racist.

The tribunal held that the OU failed to respond to acts of harassment by Ms Phoenix’s colleagues and had not done enough to protect her, suggesting it should have taken actions such as ‘asking staff and students not to launch campaigns to deplatform the GCRN, or make calls to remove support for the claimant’s gender critical research, or use social media to label the claimant transphobic or TERF’. The OU’s failure to do so was found to constitute harassment in itself and helped establish Ms Phoenix’s claim for constructive, discriminatory dismissal.

The tribunal considered that the reason the OU had failed to act was ‘because of fear of being seen to support gender critical beliefs’. The tribunal also criticised the OU for failing to display sufficient balance when it did act, noting that it only mentioned ‘harm’ in reference to trans staff and students, meaning its statements ‘were clearly only one way’ as there was ‘never explicit reference to those with gender critical beliefs being entitled to protection from harassment and or discrimination’ or potentially suffering harm as well.

Lessons to be drawn

The biggest lesson that should be taken from these cases is that when it comes to the contentious debate over gender identity, employers need to think in terms of balancing conflicting rights, rather than viewing their role as protecting one group (those with the protected characteristic of gender reassignment) from discrimination by another (those with gender critical views).

In the cases described above, those with gender critical views had been characterised as aggressors in the work environment on the basis that some consider their views to be offensive or even harmful. The tribunals rejected this characterisation and found that those with gender critical views had been the victims of discrimination and harassment, rather than the perpetrators of it.

Both Meade and Phoenix re-emphasise that those who hold beliefs some consider offensive are still afforded protection by the EqA. Furthermore, both judgments explicitly state that employers cannot equate gender critical views with transphobia and bigotry. To do so may constitute an act of discrimination or harassment in itself as the tribunals have found this to be based on stereotypical assumptions about those who hold gender critical beliefs.

Another lesson to be drawn from these cases is that the distinction between holding gender critical beliefs and manifesting these is not a silver bullet in defending claims for discrimination. While manifestation of belief is a qualified right, many manifestations will be protected and attempts to make a scholastic divide between ‘acceptable’ and ‘unacceptable’ manifestations when explaining the motivation for an impugned action may be met with scepticism, as it was in Meade where the tribunal held that the respondents’ case was ‘artificial’, ‘inconsistent with the contemporaneous documentation’ and ‘an attempt to circumnavigate the EAT’s judgment in Forstater’.

This leaves employers in a complex and demanding situation. Forstater, Bailey, Fahmy, Meade and Phoenix make clear that employers cannot treat employees less favourably because they hold and manifest gender critical beliefs and must protect them from harassment from colleagues. In Forstater, it was accepted that those who hold gender identity beliefs are protected under s.10 of the EqA and, of course, so are those who have the protected characteristic of gender reassignment under s.7 of the EqA. Careful consideration and management of all these groups’ rights is required.

The easier (albeit not easy) task for employers is ensuring they treat different groups fairly and impartially. Employers will want to be proactive in putting in place policies that make their expectations on matters like the expression of political views in the workplace and posting on social media clear. These policies will then need to be enforced in an even-handed way. For example, if one employee is allowed to display a poster stating ‘trans women are women’ (a slogan that is popular with many trans-activists), another should be allowed to a display a poster reading ‘adult human female’ (a slogan that is popular with many gender critical activists). Similarly, if one employee is told they are not allowed to post their views on social media in favour of trans women competing in women’s sport, another should be told the same as regards their views against this. A general policy against not disparaging colleagues in public may also be advisable.

Employers and regulators may also want to consider ensuring their equality training is up to date and that it covers diversity of belief, as well as considerations in relation to other protected characteristics.

These steps can be seen as necessary to protect employers from costly and reputationally damaging litigation, but also to protect their employees on both sides of debates of this kind. It is to be hoped that effective policies and training would reduce the likelihood of those with protected beliefs being discriminated against (thereby protecting employees who would otherwise be prospective claimants).

Less obviously, these steps may also protect other employees as well. A striking feature of the Meade and Phoenix judgments is the harsh criticism the tribunals made of the respondents’ witnesses, impugning both their credibility and, on occasion, their professionalism. The Phoenix judgment, in particular, contains unusually detailed personal criticisms of individual employees who were not named respondents, all of whom, no doubt, earnestly believed they were acting to promote equality and defend vulnerable minorities.

Again, it is to be hoped that clear policies and robust training on balancing rights, plurality of views and the distinction between legitimate debate on the one hand, and unlawful harassment on the other, would prevent well-intentioned employees from ending up as the target of a tribunal’s ire.

Working out where to draw the line when the interests and beliefs of those with different protected characteristics are in tension is the harder task for employers. In the gender identity/ gender critical debate, an example is the use of preferred pronouns (ie pronouns that correspond to an individual’s gender identity rather than their biological sex). Many employers have (or wish to adopt) a policy that preferred pronouns should always be used for employees, customers and clients. However, some individuals with gender critical beliefs are resistant to this, viewing compulsory preferred pronoun use as a form of ‘compelled speech’. There has been some litigation on this already:

the claimant in Mackereth, who held Christian rather than feminist beliefs, was unsuccessful in claiming discrimination in relation to his employer’s policy, requiring him to use preferred pronouns for applicants for disability-related benefits (who he assessed in face-to-face interviews); and
in Forstater, the EAT commented that Ms Forstater’s protected beliefs did not give her the right to ‘indiscriminately “misgender” with impunity’.

However, in both cases the EAT emphasised the fact-sensitive nature of its findings, expressly stating in Forstater that the question of whether misgendering amounted to harassment would be context specific.

This is just one example. There are likely to be many other boundaries that employers will have to try to police where the ‘correct’ placing of the line will only be clarified by further litigation. Employers can find some reassurance from Mackereth, which held that the respondent’s efforts to engage in open, respectful dialogue with the claimant was important to the conclusion that it had not acted in a discriminatory or repudiatory manner. This (open, respectful dialogue and a flexible approach to solutions) will not be a panacea for all ills, but it will certainly be of assistance to any employer facing claims where this kind of balancing act is required. A final lesson from the Meade judgment is that employers (and regulators, who, the Meade judgment makes clear, may also be on the hook for these kind of claims) should subject both the complaints they receive, and those who are making them, to scrutiny before launching into an investigation, especially in a highly charged, political area such as the gender identity/gender critical debate.

In Meade, the tribunal criticised SWE for failing to check the social media history of the individual who made the complaint that triggered the disciplinary process. Had it done so, it would have identified that the complainant had strongly held beliefs about gender identity and had expressed hostility to those with gender critical beliefs in the past.

Moreover, even if the complainant does not have a particular position or appear to have a wider agenda, ‘merely accepting at face value a complainant’s subjective perception of offence is not the appropriate test’ for whether a complaint should be taken forward. Rather ‘an objective evaluation should be undertaken’ as ‘the fact that offence is taken, is not the same as a remark being objectively considered to be offensive’.

Employers and regulators need to exercise their own impartial, informed judgment of a situation and determine if the conduct complained of is in fact worthy of disciplinary action, rather than assuming it must be because a complaint has been received. Allowing the subjective belief of one party to determine where the benchmark for offence should be ‘involves a potential abdication of responsibility’, which the tribunal in Meade viewed as unacceptable.

Kerenza Davis, Blackstone Chambers and Katie Mahoney, Mishcon de Reya LLP