Universities which fail to maintain institutional neutrality in their disciplinary procedures may be liable for harassment and discrimination.
On 8 January, a judgement was delivered in Rachel Meade’s employment tribunal case against Westminster City Council and Social Work England. Rachel Meade is a social worker who holds gender critical views; specifically, she believes that sex is immutable and distinct from gender identity. Gender critical beliefs are protected under the Equality Act.
Ms Meade shared a number of gender critical posts on Facebook, and signed a number of petitions calling, for instance, for transwomen to not be permitted to compete in the female category in the Olympics, and for a review of rules allowing male prisoners who identify as female in women’s prisons.
After a colleague reported Ms Meade’s posts to Social Work England, the regulatory body for social workers, Social Work England issued Ms Meade a one-year warning. Following this, Westminster City Council, Ms Meade’s employer, suspended her for gross misconduct and investigated her fitness to practise. Ms Meade responded by launching an employment tribunal case against Social Work England and Westminster City Council.
In its judgement, the tribunal found that both Social Work England and Westminster City Council had taken disciplinary action against Ms Meade because they thought that her gender critical beliefs were “inherently… unacceptable”. Because the disciplinary actions were taken against Ms Meade simply because of her gender critical views, they were found to constitute harassment. Moreover, Social Work England and Westminster City Council were found to be liable for harassment because they took disciplinary action on the basis of their own views in the gender debate – that is, because they failed to maintain institutional neutrality in their disciplinary procedures. The tribunal also stated that, in its opinion, the labelling of Ms Meade’s posts as “transphobic” in Westminster City Council’s investigation report constituted harassment.
The Meade case judgement is not binding on future tribunals. However, it is strongly indicative of judgements that will be made in the future. It is highly likely that if universities launch disciplinary proceedings against academics on the basis that they hold gender critical beliefs, they will be found liable for harassment and discrimination.
The timing of the Meade case is particularly significant. A recent CAF report found that only 3 of the 24 Russell Group universities have made a public commitment to institutional neutrality. A further recent report by CAF found that 9 UK universities define denying or refusing to accept a person’s gender identity as “transphobia”. The denial of a person’s gender identity may partly constitute, or be entailed by gender critical beliefs. Thus, the 9 universities have labelled many gender critical academics as transphobic. Transphobia is generally considered a serious disciplinary matter, comparable to racism, and potentially warranting severe disciplinary penalties. Thus, it is very possible that disciplinary proceedings may be brought against an academic at one of these 9 universities on the grounds that they hold gender critical beliefs.
Best Free Speech Practise, an organisation which works to “clarify and promote” the legal requirements relating to free speech, has issued a statement on the Meade case. It points out that the Tribunal ruled that asserting that having gender critical views was “transphobia” was harassment, so other institutions doing this in future run “significant risk of being unlawful”. The statement was written by William Mackesy, and Andrew Neish KC, both senior lawyers. The definition of transphobia as including the denial of an individual’s gender identity is promoted by Stonewall.
It appears that universities which fail to maintain sufficient institutional neutrality in their disciplinary procedures and more widely will make mistakes which will lead to findings of unlawfulness and penalties from the courts. Universities must maintain institutional neutrality: it is a pre-requisite for academic freedom.