Over the last month there have been three important tribunal decisions (two in the UK, one in Australia) in favour of women who had been disciplined or dismissed or sued for expressing “gender critical” views. This phrase, broadly, refers to those who believe that sex is a biological reality and that someone’s gender aligns with their sex. Allegations of “transgender vilification” or claims that someone’s views on this matter can be a ground for workplace penalties have been common over the last few years. But the three cases I want to mention here (involving social worker Rachel Meade, academic Dr Jo Phoenix, and commentator Kirralie Smith) suggest that the tide may be turning in favour of those who hold the view that biology matters.

A preliminary comment: none of the women whose cases I mention here claim that their views are based on religious beliefs. But these cases are worth noting in a “law and religion” context, as many religious believers will follow the teachings of their faith, and most mainstream faiths stress the important of sexual identity based on biology as part of the divine purpose for humanity. For those who would like to explore the issues here from a Christian perspective, I highly recommend the excellent coverage of the area from Patricia Weerakoon, Robert Smith and Kamal Weerakoon, The Gender Revolution: A Biblical, Biological and Compassionate Response (Sydney: Matthias Media, 2023). Those who are convinced about the important of sex as a biological reality on religious grounds, should be grateful for the courageous stance of those who have stood for this principle on general grounds of logic and as committed feminists, who see the dangers for women and children in unchallenged “gender theory”.

In this short post I will simply be highlighting the recent cases so that those interested can read more for themselves. By way of summary, I commend this excellent recent overview in The Guardian (!) by Susanna Rustin, “The law is now clear: you can’t be punished for having gender-critical views. So why does it keep happening?” (26 Jan 2024).

Rachel Meade

The decision of the Employment Tribunal in Meade v Westminster City Council and anor (4 Jan 2024) can be seen here. Ms Meade was a social worker employed by the Council and was the subject of an investigation by the regulator, Social Work England, after some “gender critical” comments she made on her private Facebook feed (and some links she had shared) were seen and complained about by one of her Facebook “friends”, a fellow social worker. The fact that she endured an extensive investigation and disciplinary process from both the regulator and her employer, was found by the Employment Tribunal to amount to “harassment” on account of her protected beliefs pursuant to S 26 of the Equality Act 2010 (UK).

That the UK law forbidding harassment on the basis of beliefs extends to protecting those with “gender critical” views was established in important litigation at the Employment Appeal Tribunal involving Maya Forstater- see Forstater v CGD Europe & Ors [2021] UKEAT 0105_20_1006, [2021] IRLR 706; see my previous summary of that decision here. Here the Tribunal commented that Ms Forstater and Ms Meade held similar views:

The Claimant and Ms Forstater hold gender-critical beliefs, which includes the belief that sex is immutable and not to be confused with gender identity. They both engaged in debates on social media about gender identity issues, and in doing so made some remarks which some transpeople found offensive and “transphobic”. Ms Forstater considered that statements such as “woman means adult human female” or “transwomen are male” are statements of neutral fact and are not expressions of antipathy towards transpeople or “transphobic”.

Meade, at para [20]

Some of the allegedly offensive material posted by Ms Meade was summarised as follows:

55. A link to a petition to the International Olympic Committee that male athletes should not compete in female sports. 

56. A link to a petition that women have the right to maintain their sex-based protections, as set out in the [Equality Act] to include female only spaces such as changing rooms, hospital wards, sanitary and sleeping accommodation, refuges, hostels and prisons. 

57. A reposting of a tweet from “feminist heretics” stating that it looks like JK Rowling is soon to be targeted by the Inquisitorial Squad for following the wrong people on Twitter. 

Meade, paras [55]-[57]

To summarise, the Tribunal held that the comments were genuine reflections of Ms Meade’s beliefs, and were not abusive or hostile. The mere fact that someone (there was only a complaint from one person) found them “offensive” was not enough to justify the harassment and disciplinary process that she had been subjected to:

We reminded ourselves that it would be an error to treat a mere statement of the Claimant’s protected belief as inherently unreasonable or inappropriate: see, for example, the observation of Choudhury P in the EAT’s judgment in Forstater that: 

“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”. 

Meade, para [182]

The Tribunal concluded that the comments had not crossed the line into speech that aimed to attack or interfere with the rights of others. Hence there had been unlawful harassment:

192. We acknowledged that the Claimant’s manifestation of her beliefs is subject to the qualifications as set out in the judgment of the EAT in Higgs. We took account of the criteria set out by the EAT in Higgs to include, the content of the manifestation, the tone used, the Claimant’s understanding of the likely audience, the fact that the Claimant’s Facebook was private and no suggestion was made that the views she expressed represented the views of the First Respondent, the extent and nature of the intrusion on the rights of others and any other consequential impact on the First Respondent’s service users or more generally from the Second Respondent’s perspective the reputation of the social work profession. 

193. We consider that all of the Claimant’s Facebook posts and other communications fell within her protected rights for freedom of thought and freedom to manifest her beliefs as protected under Articles 9 and 10. 

194. We do not consider that any of her manifestations of her beliefs were of a nature that they aimed at the destruction of any of the rights and freedoms of others contrary to Article 17. 

Meade, paras [192]-[194]

Prof Jo Phoenix

Professor Phoenix’s case is reported as Phoenix v Open University (22 Jan 2024). Her case is fairly similar to that of Ms Meade, though it is in the context of the increasing intolerance in some academic circles for politically controversial views. Prof Phoenix was a Professor of Criminology at the Open University (OU), and held “gender critical” views similar to those we have already noted. A senior member of her department compared her to a “racist uncle at Christmas” in implying that her views were completely unacceptable. She was not allowed to discuss her research on the area with colleagues. A number of colleagues joined in an Open Letter attacking her. The OU management did not provide support for her in the face of these attacks, and she was effectively forced to leave.

In the course of examining what had actually happened, the Tribunal made this damning comment about the testimony given by some of the academics who were called:

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.

Phoenix, para [22].

The Tribunal found that testimony which sought to explain away some of the harassing behaviour was inaccurate. Dr Phoenix had received negative comments from other staff in response to articulating her views. She with some other academics set up a “Gender Critical Research Network”, which was then subject to a hostile “Open Letter” signed by 368 OU staff members & postgraduate researchers (see para [150]). Dr Phoenix and her colleagues were unjustly accused of being “hostile” to transgender persons. The letter in effect called for the Network to be disaffiliated from the OU. The Tribunal found that the behaviour of some colleagues contravened the University’s bullying policy, but no action was taken against the offenders.

The Tribunal found that there had been harassment on the basis of Dr Phoenix’s gender critical beliefs, and also that on two occasions there had been direct discrimination, detrimental treatment on the basis of those beliefs. A later hearing is to determine appropriate relief which will probably include an award of damages.

Kirralie Smith

Kirralie Smith’s case before the New South Wales Civil and Administrative Tribunal (NCAT) is Blanch v Smith [2024] NSWCATAD 20 (22 January 2024). Ms Smith runs an advocacy organisation, Binary Australia Ltd, which advocates for sex-based rights, especially for women, and often posts about transgender males who have been allowed to compete in women’s sport. Stephanie Blanch was mentioned on the website of Binary in this context and claimed that this amounted to “transgender vilification” under sections 38S(1)(a) and 52 of the NSW Anti-Discrimination Act 1975 (“ADA”).

While there are good arguments that what was said did not actually breach s 38, the case was dismissed on other grounds. In recent years the High Court of Australia has made it clear, following its decision in Burns v Corbett [2018] HCA 15 (see my post on this decision here), that tribunals which are not actually established as “courts”, cannot legally hear claims which involve matters involving the interpretation of the Constitution (and other matters mentioned in sections 75 and 76 of the Constitution, such as disputes between residents of different States.)

The case of Ms Smith turned out to raise important issues as to the implied freedom of political speech guaranteed by the Constitution, and hence her lawyers argued that it could not be dealt with by NCAT, which has been held not to be a court. Initially it seemed that the Tribunal Member was considering whether the fact that there was a decision of the NSW Court of Appeal upholding the validity of the “homosexual vilification” provisions of the ADA (Sunol v Collier [2012] NSWCA 44), was a sufficient reason to hold that the tribunal could exercise jurisdiction in this case. (See the apparently clear statement about this in para [8].)

However, after spending some time reviewing the relevant law on the implied freedom, it seems that Senior Member Andelman came around to the view that indeed dealing with this issue in Ms Smith’s case would involve the Tribunal taking a view on constitutional issues. Hence the judgment concluded:

[55] For the Tribunal to find that such an argument is untenable regarding the prevention of transgender vilification as a legitimate end of government on the same basis found in Sunol requires a value judgement which would in my opinion involve delving into the merits of the claim which the Tribunal has no jurisdiction to do.

[56] As the Tribunal has no jurisdiction to determine these proceedings because they involve an exercise of federal jurisdiction, the application  is declined.

Smith, paras [55]-[56].

In this case the matter may now be re-litigated in the Local Court or the District Court (see s 34B, Civil and Administrative Tribunal Act 2013 (NSW)), but for the moment it has been dismissed.

Conclusion

The three cases mentioned here are different in many ways. But they do show that taking a stand on “gender critical” views (which many would simply describe as basic biology) can be defended in the legal system. This is a good trend.