An employment judge has dismissed a complaint by two researchers, who alleged that the University and College Union (UCU) discriminated against them by publicly opposing the screening of their gender critical film Adult Human Female.
Deirdre O’Neil and Michael Wayne sued UCU after its Edinburgh branch attacked their film as “transphobic”, alleging that its comments contributed to creating a “hostile environment” for protected gender critical beliefs.
The film, which critically examines the idea that “trans women are women and should be treated as women in all legal and social contexts”, was released in 2022, and an official screening was planned at the University of Edinburgh for December of that year.
When the UCU Edinburgh branch learned of the planned screening, a letter was sent to the University’s principal, demanding a cancellation of the screening. The letter accused the film of being a “clear attack on trans people’s identities”, also adding that its content violated the Dignity and Respect policy because it “is specifically not, ‘expression within a framework of mutual respect’”.
Although O’Neil and Wayne also pointed to several social media posts by the Union branch as evidence of discrimination, this last part of the letter is the most telling. The Dignity and Respect policy was originally introduced in 2013 to replace Edinburgh’s Harassment Codes, but underwent a significant revision in 2016 to ensure alignment with broader equality policies. This included a new expectation of the University to ensure that:
“It fosters a positive culture for working which permits freedom of thought and expression within a framework of mutual respect.”
While the policy never defines exactly what “mutual respect” means, the Union’s response to Adult Human Female makes it clear that it believes that merely questioning whether “trans women are women” fails to meet this requirement. Indeed, a separate UCU Edinburgh motion from 2019 makes this even more explicit by openly calling on the University to not tolerate “meetings which contain content which is transphobic, biphobic, homophobic or otherwise detrimental to the safety and wellbeing of LGBT+ staff”.
This amounts to open advocacy by UCU of discrimination against the expression of any beliefs that it considers “transphobic”. It would seem that O’Neil and Wayne have a pretty strong claim that they were indeed discriminated against. Moreover, after the Principal of Edinburgh refused the request to cancel the event, and protestors took it upon themselves to do so by blocking attendees, both at the original screening in December 2022 and at the second attempt the following April, UCU branch vice president Grant Buttars published an article calling the cancellation “a victory”. He added that the protesters had done “what the University itself should have done”.
This is from the same person who has previously argued that trade unions such as UCU should support the dismissal of their own members if they hold a “position that is completely at odds with” the union being “unequivocally inclusive”. In such cases, adds Buttars, evoking “academic freedom and freedom of speech is just a facade” because it always a “question of class and power”.
The UCU Edinburgh branch does not even hide its wish to suppress certain kinds of ideas, including the notion that there are only two sexes. This is particularly striking given that such gender critical beliefs have been found to be protected under the Equality Act on numerous occasions. Despite this, the tribunal judge dismissed the complaint of unlawful discrimination.
The reasons for this were threefold. First, the judge ruled that O’Neil and Wayne had failed to show any “detriment” caused by the UCU’s actions, as no written material was directly sent to them and the social media posts did not mention them by name, but only referenced the film. Considering whether labelling the film “transphobic” could implicate its makers as well, the judge deemed the connection “too remote” to constitute detriment.
Second, the judge found that the UCU’s reason for opposing the screening was a belief that “other members of its Union would be offended by some of the content” and that “under its policies, the Union was entitled and indeed required to protect them as best it could”. This is a staggering ruling. It implies that UCU has a duty to attempt to prevent the airing of any views that some of its members may find offensive in order to “protect them”.
Furthermore, the judge added that UCU had only demanded a cancellation of the screening because it believed that the University of Edinburgh had similar obligation to protects its members from the film. In an even more surprising turn, the judge said that UCU had only tried to stop the film from being screened on university premises, rather than pursuing a general ban. How exactly the Union branch might have attempted this alternative approach is left unspecified. Maybe a blockade of all venues in the country that could have shown the film? Or a North Korean-style hacking campaign aimed at erasing the movie entirely?
Finally, the tribunal decided that the film “was not an academic work published by the Claimants in relation to their respective specialisms” and that the case was therefore not “about academic freedom”. In addition, UCU had at most acted against “a manifestation” of O’Neil and Wayne’s beliefs, not against the beliefs themselves. This is apparently a legal distinction that applies when “the employer genuinely has no objection to the employee holding the belief and is motivated only by the conduct which constitutes its manifestation”.
Even if you can bring yourself to believe that UCU Edinburgh branch has no objections to people holding “transphobic” beliefs, but only to certain manifestations of such beliefs, this does not assuage the concerns for academic freedom. Would the Union have no objection to other manifestations of the same gender critical views, such as a talk or a book with the same arguments as the film? Obviously not, as its own 2019 motion explicitly encourages the prohibition of “meetings which contain content which is transphobic”.
Moreover, the fact that the film does not directly relate to Deirdre O’Neil or Michael Wayne’s “respective specialism” has nothing to do with their right to show it. Freedom of conscience and of speech within the university applies to all your beliefs, not just to those in your area of specialisation.
In the end, the judge concluded that since O’Neil and Wayne were not members of either the University of Edinburgh or its UCU branch, they could not really have been discriminated against, as their membership of their own branches was not affected by the incident. This may or may not be a valid legal excuse, but either way, the Union clearly acted in a way that threated academic freedom.
The University of Edinburgh was right to deny the demands for cancellation, and to eventually provide the extra security that allowed the screening to go ahead on the third attempt. The UCU, on the other hand, should revise its Dignity and Respect policy to ensure freedom of speech under the law, rather than within “a framework of mutual respect”. The former is a clear guideline that allows for debate on controversial topics, while the latter is a vague restriction that can all too easily be hijacked by those determined to take offence.