Prof Jo Phoenix vs The OU - Employment Tribunal Thread 8

[ickky]

Started on 2nd October at Watford Employment Tribunal (Radius House, 51 Clarendon Rd, Watford WD17 1HP 01923 281750)

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URGENT CURRENT CASE - Public Access Request - J Phoenix - The Open University - 3322700/2021

Ask for access link and pin and please give your name and address in the email as they check when you connect to the tribunal.

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Abbreviations

JP - Jo Phoenix, Claimant (C)
OU - The Open University, Respondent (R)
J - Regional Employment Judge Young
P - Panel or panel member
BC - Ben Cooper KC, Counsel for C
JM - Jane Mulcahy KC, Counsel for R
OU Departments & Networks:
HWSRA - Health & Wellbeing Strategic Research Area
FASS - Faculty of Arts and Social Sciences
SPC - Dept of Social Policy & Criminology
KMi - Knowledge Media Institute
GCRN - Gender Critical Research Network

OU witnesses

PB - Dr Paraskevi Boukli, Former Senior Lecturer Criminology, Deputy Head SPC 2021-22
IF - Prof Ian Fribbance Dean of FASS
MW - Prof Marcia Wilson, Dean EDI, 2020-23
CM - Caragh Molloy, Group People Director 2019-23
LD - Dr Leigh Downes, Senior Lecturer in Criminology (in SPC), Academic Lead for EDI FASS 2019-21
PK - Peter Keogh, Professor Health & Society, Member RSSH
CW - Dr Christopher Williams, Senior Lecturer History
KS - Kevin Shakesheff. PVC for Research and Innovation
NatS - Natalie Starkey, Outreach & Public Engagement Officer Sch Physical Sciences, 2019-22
HBC - Helen Bowes-Catton, Lecturer Social Research Methods
JD - John Domingue, Prof of Computing Science, Director KMi, 2015-22
LW - Louise Westmarland, Prof of Criminology, Co-Deputy Head SPC, 2018-21, Current Head SPC
RH - Richard Holliman, Prof Engaged Research, Head School Environment, Earth & Ecosystem Sciences, 2019-22. Member of Investigation Panel investigating the C’s grievance
CT - Catherine Tomlinson, Senior Student Advisor
DD - Dr Deborah Drake, Senior Lecturer Criminology, Head of SPC 2018-21😇
SD - Shaun Daley, Head OU’s Resourcing Hub. Head Strategic Resources, Co-Chair OU’s LGBT+ Staff Network
SJ - Samantha Jacobson, Employee Relations Case Manager
NS - Nicola Snarey, Assoc Lecturer Eng Language - This witness did not give evidence.

Witness for JP:

SE - Professor Sarah Earle, Head of the HWSRA

Tribunal Tweets - https://twitter.com/tribunaltweets

TT coverage so far - https://tribunaltweets.substack.com/p/professor-jo-phoenix-v-the-open-university

Prof Jo Phoenix Witness Statement (scroll to bottom of page and download)

https://jophoenix.substack.com/p/phoenix-v-open-university?sd=pf

Thread 1
https://www.mumsnet.com/talk/womens_rights/4905118-jo-phoenix-vs-the-ou-employment-tribunal-2nd-october-whispers-ben-cooper?page=1

Thread 2
https://www.mumsnet.com/talk/womens_rights/4913946-prof-jo-phoenix-vs-the-ou-employment-tribunal-thread-2?page=1

Thread 3
https://www.mumsnet.com/talk/womens_rights/4917480-prof-jo-phoenix-vs-the-ou-employment-tribunal-thread-3

Thread 4
https://www.mumsnet.com/talk/womens_rights/4918479-prof-jo-phoenix-vs-the-ou-employment-tribunal-thread-4

Thread 5
https://www.mumsnet.com/talk/womens_rights/4919223-prof-jo-phoenix-vs-the-ou-employment-tribunal-thread-5

Thread 6
https://www.mumsnet.com/talk/womens_rights/4921308-prof-jo-phoenix-vs-the-ou-employment-tribunal-thread-6

Thread 7
https://www.mumsnet.com/talk/womens_rights/4922765-prof-jo-phoenix-vs-the-ou-employment-tribunal-thread-7

Speaking of Dentons, compare the ratios of women amongst associates versus women amongst partners. Whilst I don't think it's a primary motivator, it could be ever so convenient for their partner stats if "being a woman" was a matter of self-id. It also shows that very few women and Black people are involved in deciding that Denton's should "go woke".

Image of https://www.legalcheek.com/firm/dentons/

@ickky thanks as said am new to all of this so may make the odd faux pas i hope i might be forgiven for.

Am going to look into what you point to

I have a political/legal interest in all of this, i was an SWP member a long time ago, before the whole delta debacle i might add.

Never thought feminism was objectionable, my first political home. I can instinctively smell the SWP in the LSE statement of support, the language phraseology is so familiar to me.

@Karensalright Of course. 😀I think you sometimes need a bit of irreverence and humour on here, it's a case if you don't laugh, you'll cry.

Word of warning though as you are new to this, some of the subject matter is quite hard to stomach.

But if you are game, I found an old thread on here with links etc.

https://www.mumsnet.com/talk/womens_rights/4059873-Deep-Dive-on-the-Dentons-document

AutumnCrow · Today 17:48

I agree, it's almost beyond belief that a group of apparently intelligent people, who have risen to become university lecturers, could conceivably think that an orchestrated campaign of ostracism and harassment of a colleague could be, in any way at all acceptable.

Oh I do enjoy a scolding of a Sunday evening. The frisson!

<waves to the monitors>

@ickky am so very very game worked for most of of my adult life in sexual and domestic violence services now semi retired actual gardener for a living.

I really want to get to the bottom of who is orchestrating all of this your posts will keep me busy tomorrow. Am in bed with covid lol

Quote from equalities act
"Gender reassignment(1)A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.

(2)A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.

(3)In relation to the protected characteristic of gender reassignment—

(a)a reference to a person who has a particular protected characteristic is a reference to a transsexual person;

(b)a reference to persons who share a protected characteristic is a reference to transsexual persons."

IANAL - but if born male insisting you are a woman and have always been a woman would put your belief outside that legal protection. If you deny sex is real you can't reassign it so again that belief wouldnt seem to be covered. You could still be protected from discrimination on grounds of gender reassignment but your belief would not be.

I can believe there may be some discrimination in employment against trans people. If you were interviewing for a job and someone was making a fuss about pronouns you might wonder if they'd be a bit of a troublemaker generally. If they turned up for an interview dressed in clothes that looked unprofessional wouldn't you offer the job to someone else? TRAs have made such a fuss about their perceived rights they are shooting themselves in both feet.

I agree completely. However, at least some of the OU witnesses and the OU's barrister appeared to be arguing that the behaviour was not that bad and that it was, in any event, triggered by JP's approach. My view on the evidence I've seen is that their argument shouldn't fly, but we'll have to see what the panel make of it.

Oh, the old, "She was asking for it," excuse hadn't occurred to me.

I know of no case where a trans identifying personage has sought a discrimination case in employment law, so is there any? Anyway the community of cross dressing are not protected in public discourse unless it is a hate crime which has been tested as well. So we are free to say that men dressed as women are not real women, and not a women at all.

There certainly has been at least one case of a trans woman suing for discrimination. The case was brought against the Financial Times, and failed, I think. There may also have been one more recently against the NHS which was successful. Sure someone will be along soon with a better memory.

Sorry, I didn’t put the offensive gap in transwoman, but don’t know how to edit.

Click or tap the three dots in the top-right of your post and the edit option is at the bottom of the menu that pops up, but it's a time-limited feature.

The NHS one was The Case of the Wrong Comparator, I think? Otherwise the result would have been different. Exasperating.

@wacademia . Thankyou, I clicked but there was no edit listed, but I will remember.

@Karensalright there have been several cases. This one reported this week https://www.hrmagazine.co.uk/content/news/transgender-employee-wins-historic-sex-discrimination-case/ I have only read the reporting but on the face of it not changing someone’s name on HR/employer records is a slam dunk case of discrimination.

This article reports on the rise of cases https://www.personneltoday.com/hr/transgender-employment-tribunal-cases-rise/

Gender reassignment is a protected characteristic in its own right. A belief in Gender Identity Theory has not, as far as I am aware, been tested at ET. I, like many HR Professionals, believe that as an EAT found Gender Critical belief to be WORIADS under the religion and belief PC, it is highly likely a belief in Gender Identity Theory would be similarly protected.

Sensible employers should balance the two beliefs e.g. respecting an employees pronouns if they choose to share them but not requiring employees to state pronouns. Allowing employees to use the Cis prefix or the term Queer in relation to themselves but not to apply them to other employees. Having and maintaining single sex facilities but also, where possible, providing some unisex facilities (not co-opting disabled facilities).

The reality is that transgender people have existed for decades and more recently have legal rights. Additionally we also have detransitioners and non-binary people who currently are in a bit of a legal vacuum e.g. Kiera Bell has a GRC so is legally male and there is no legal route to change this. These people are not going to go away and are likely to increase not decrease, particularly non-binary. Sadly Stonewall has since 2015 created an extremely hostile environment and their no debate stance means that moderates on both sides have not been able to sensibly work through how to equitably protect both women’s rights as well as trans rights in law.

Bringing it back to this case, the problem the OU faces is that a vocal number of employees automatically assumed GC views meant transphobic and were hostile to employees who were openly GC. The OU management did not take decisive action to make it clear that GC views were WORIADS and that those employees who believe in Gender Identity Theory needed to treat GC colleagues with dignity and respect.

How do you know someone on here was fake?

Although we all use it as a shortcut, being WORIADS is not - in itself - particularly meaningful. It is part of the test of whether a belief is protected by the Equality Act.

As far as I remember the first Forstater case found that GC belief wasn't protected because it failed the WORIADS criterion, whereas the appeal found that it passed. And as a result we remember WORIADS as being the important thing - but really what matters is that it passed all parts of the test.

If would not be safe to assume without legal testing that the inverse belief is therefore also automatically protected. It's fairly easy to think of a belief that would not pass the WORIADS test, but the opposing belief would.

However, WORIADS is a pretty generous test. A belief doesn't fail simply for being ridiculous (religions are protected, and I'm sure we can all think of at least 1 daft religion). I think the example given in Forstater of something that would fail WORIADS was Nazism, so It really does have to be something quite extreme. And I don't think GI would fail.

Not that part of the test.

But to be protected it must pass all parts. Including that it must 'attain a certain level of cogency, seriousness, cohesion and importance'.

That's where I think there could be a weak point.

But to be protected it must pass all parts. Including that it must 'attain a certain level of cogency, seriousness, cohesion and importance'.

That's where I think there could be a weak point.

I foresee failure on cogency, now that I've looked up what all four of those words mean. Spewing word salad in the hope that your opponent will doubt their own intelligence and give up does not constitute cogency. Circular definitions of "woman" also do not constitute cogency.

@BinturongsSmellOfPopcorn I agree GI beliefs do need to be tested at ET/EAT.

@BinturongsSmellOfPopcorn I remember Maya saying at the time she won her EAT that the protection of her gender critical belief also provided a legal protection from discrimination to those who are non-believers in gender critical belief. Her solicitor Peter Daly mentioned this in his blog about her case at the time:

As sought by Maya Forstater in her case, gender theory beliefs – the contrary to hers, are also recognised as protected from discrimination by the judgment.

https://www.doyleclayton.co.uk/resources/news/Gender-critical-beliefs-case-win/

I don't know if protecting the "negative" ie non belief in immutable, binary sex that's important in society is the same as protecting the positive statements of belief a gender identity advocate might hold. eg. there are 98 genders, people can change gender 59 times a year etc.

Yes, for all protected beliefs there is also protection for not believing in them. But as you say 'not having GC beliefs' is not the same thing as 'having GI beliefs'.

People like Matt Walsh, for example, believe in the immutability of sex (so, not GI), but also believes firmly in gender roles (so also not GC).

Their MO is to screech and wail and cry about hurt and distress.

Indeed.

Why does everybody dance on eggshells around them when they claim to feel "unsafe"?

They feel "unsafe" to work in the same department with someone who has GC views.

They feel "unsafe" to read anything written by someone with GC views.

They feel "unsafe" to have a zoom meeting if someone with GC views is present.

They feel "unsafe" in situations where they aren't even going to meet/ speak to/ see the GC individual (invariably a woman - I can't say I've ever seen a man with GC views who has made anyone feel unsafe).

What do they think is going to happen to them? Are they frightened that they will accidentally catch common sense?

It's the other way round.

Omitting the gap is offensive (to the TRAs)

"Transwomen" (no space) - "trans" is a prefix - it modifies the noun "women", in the same way that the prefix "un" modifies the abstract noun "happy". The prefix makes it clear that the "transwoman" is not, in fact, a woman.

"Trans women" (space) - "trans" is employed as an adjective - it then appears to describe a woman in the same way as "tall", "blonde", "slender" etc do. This makes a "trans woman" appear to be a woman, even though they are talking about a man. A REAL"trans woman" would be a woman who identified as a man.(1)

This has been a very subtle shift in the use of "trans". The TRAs originally used 'transwoman" and when women complained insisted that it was a prefix used in science (which it is) from Latin (ditto) and was appropriate (I would argue the toss on that, but whatever). Once they had got that established to their satisfaction, they moved away from prefix to adjective - subtle, but dangerous.

(!) This is another deliberate obfuscation - many people have no idea "which is which". Is a transwoman biologically male or female? I've met women who were happy to have TW share their spaces because they though they were women who regarded themselves as men. They didn't mind a woman, of any type, in their loos, changing rooms etc. There are shocked when they find it's the other way round - and are even more shocked to learn that a massive majority of TW don't have any surgery, and often no hormone therapy either.

The confusion of terms is intentional.

Edited for spelling.

Nothing to do with Jo or GC legalities, but this is heartening.