The law is now clear: you can’t be punished for having gender-critical views. So why does it keep happening?

Photograph: Sam Frost/The Guardian

I can clearly remember the moment I found out that Maya Forstater, the NGO researcher who lost her job in 2018 because of her gender-critical beliefs, had lost her employment tribunal. This was in December 2019, and it chilled me because I share Forstater’s view about the importance of biological sex. In a verdict that was later overturned, Judge James Tayler ruled that her opinions were “not worthy of respect in a democratic society”, and thus not protected under the Equality Act or the articles of the European convention on human rights concerned with freedom of thought and expression.

It is still not widely recognised how momentous this was. For 18 months, until this decision was reversed on appeal, it was widely assumed to be legal to sack a person if they expressed the belief that biological sex was immutable and distinct from gender identity (the feeling of being male or female – which for transgender people means an experience of mismatch between mind and body). Women like me, who don’t believe everyone has a gender identity distinct from their sex, risked being labelled bigots if we said what we thought.

Perhaps this sounds like an exaggeration? Gender-critical feminists have always had friends in high places, famously including the writer JK Rowling. These days government ministers including Kemi Badenoch are strong advocates for the single-sex spaces and sports we believe in. Even Labour has abandoned its support for self-ID, which enables a person to change the sex on their birth certificate without a medical evaluation. Considering all this, you may assume our pariah (or potential pariah) status was a blip.

But you would be wrong. Things have moved on since all the main UK parties supported self-ID. Gender-critical feminism – which argues that women’s rights and sexual politics are connected – is less often placed in scare quotes. But a series of court cases, most recently those of academic Jo Phoenix and social worker Rachel Meade, shows that workplace discrimination against those who don’t support self-ID or believe that “trans women are women” continues.

Phoenix’s win against the Open University in an employment tribunal this week was the first time a university has been found to have discriminated against a gender-critical employee. The ruling was highly critical of the organisation and members of its staff who collaborated on an open letter and statements opposing the establishment of a gender-critical research network of six people. The tribunal found that Phoenix, a professor of criminology, had been constructively unfairly dismissed, discriminated against, victimised and harassed. And it said some of those involved in the attacks on her were “evasive and resistant to providing the truth” to the tribunal. (In a statement, the university said it was considering whether to appeal.)

Meade’s case, by contrast, had nothing to do with her actions at work. This seems incredible – until you remember that Forstater, too, was punished for expressing these views on social media in her free time. The allegations against Meade were based on a list of Facebook posts she had shared, in relation to gender law reform, with a closed group of about 40 “friends”. One of these complained to her regulator, accusing her of transphobia. Social Work England (SWE) sanctioned her for misconduct. Westminster council suspended her from her job for 13 months. Two colleagues were also suspended for failing to report concerns.

Meade, like Phoenix, won the case she brought as a result. The tribunal ruled that she had been harassed by her employer and regulator. Compensation for both women will be decided at later dates. But a statement made by Social Work England shows how partisan that organisation’s position was. It said that gender-critical people “are unlikely to accept that transgender people who have socially and/or medically transitioned from one sex to another, are as matter of fact, biology and reality members of their chosen sex”. Given its treatment of Meade, it seems clear that SWE believes people can indeed choose their sex – not only as a matter of legal registration, via the gender certification process introduced by the last Labour government, but as a matter of “fact, biology and reality” – even if they have undergone no medical treatment and their transition is a purely social one (clothes, name-change and so on). It is the core of gender-critical belief that this is not true.

If Phoenix and Meade were the only examples of this kind of persecution they might be dismissed as one-offs. Some discrimination lawyers are sanguine that employers will soon catch up with a dynamic area of case law. But other gender-critical people have faced similar mistreatment. Arts Council England was found last year to have harassed Denise Fahmy, with the judge noting that an executive’s comments “opened the door” to a petition against her and slurs including a reference to “neo-Nazis” that were circulated among colleagues. Allison Bailey, a barrister and one of the founders of the LGB Alliance, was discriminated against by Garden Court Chambers. Bailey failed in the part of her claim that sought to blame Stonewall – the gay and transgender rights charity that offers training, advice and awards to employers – for inducing her colleagues to discriminate against her but will try again in an appeal.

Also in the pipeline are three separate claims against the Green party, and two more against the Open University. A constructive dismissal case brought by a former employee of Edinburgh Rape Crisis Centre is under way. Other women, including the dancer Rosie Kay and children’s author Rachel Rooney, have talked and written about losing work opportunities due to their beliefs, but have not taken employers to court.

There were more than 7,000 employment tribunals in the last quarter for which figures are available, and cases concerning gender-critical belief make up a tiny fraction. Gender politics is well known to be a fraught topic. But it is a cop-out to treat experiences such as Phoenix’s and Meade’s as collateral damage while the issues are worked through. Whatever their views on sex and gender, liberals should be curious about why women are being ostracised and punished for their conviction that sex differences are important. So should trade unionists, whose job it is to protect people’s rights at work.

None of these women was accused of harassing or discriminating against a transgender person in their workplace – which is, of course, illegal, since gender reassignment, like religion or belief, is a personal characteristic protected in law. Each was targeted on the basis of the belief they hold. Outside courtrooms as well as within them, gender-critical women will continue to seek accountability for what has gone on. Yes, there are other problems in the world to worry about. But we won’t forget the 18 months during which our long-held feminist beliefs about sex were officially deemed “not worthy of respect in a democratic society” – or stop being grateful for the courage of women such as Jo Phoenix and Rachel Meade.

Susanna Rustin is a Guardian writer