Rape crisis centre deliberately harassed and unfairly dismissed counsellor who voiced gender critical beliefs

In Adams v Edinburgh Rape Crisis Centre, a tribunal had to decide if an employee was discriminated by her employer because she didn't subscribe to its belief that there is no such thing as biological sex and that a man can become woman simply by asserting they identify as one and/or because of her gender-critical beliefs. 

Background

Ms Adams worked as a counsellor at the Edinburgh Rape Crisis Centre (ERCC/ the centre). She is supportive of trans people, but believes that biological sex is real and immutable, and matters in some contexts. In particular, she believes that victims of male sexual violence should be able to choose whether to engage with male or female counsellors in order to give informed consent. 

The ERCC was set up to support women who had been sexually assaulted. It included trans women in this definition as well as those who identify as non-binary. 

Appointment of a new CEO

In 2021 the centre advertised for a new CEO. It relied on the exception in Schedule 9 of the Equality Act to limit applications to women. For reasons that are not altogether clear, and despite limiting applications to women, it appointed a trans woman (Mridul Wadhwa) to the post. She did not have a gender recognition certificate and therefore legally is a man.

MW's appointment was controversial. She had appeared on The Guilty Feminist podcast and had been asked about whether she would support rape victims who didn't want to be counselled by a trans woman. She responded by saying that “bigoted people” experience sexual violence too and should be “challenged on their prejudices” and needed to “reframe [their] trauma”. Any emails sent to the centre attacking MW's appointment were automatically put in a “hate folder” as being transphobic. 

Ms Adams expressed concern about this. She also warned that giving ambiguous answers to rape victims who wanted to know the sex of their counsellors could mislead them or lead them to self-exclude from the service.  

Responding to service users asking about the sex of their counsellors

This escalated when one of the counsellors, AB, announced to the team that she identified as non-binary and had changed her name to a male sounding one and wanted other people to use they/them pronouns when referring to her. Ms Adams and others in her team were worried that victims might think that AB was male and asked for clear guidance about how to respond to queries. The line manager agreed to provide this but, in fact, failed to do so. 

Then a rape victim who had been allocated AB as their counsellor emailed to ask if AB was male or female. Ms Adams emailed her line manager saying that she was inclined to say that AB was a woman at birth who now identified as non-binary and asked for advice. She copied AB into the email. 

The senior leadership team said that service users should be told that it didn't employ men and that it was up to individual counsellors to disclose their gender identity to others if they wished to as this was private information.

A few days later Ms Adams was hauled over the coals by her line manager about the email. She sent a detailed and conciliatory email to her manager later the same day and apologised if her comments were painful to AB. However, she challenged the centre's position. She said that they shouldn't assume that the women using their service believed in gender identity (and therefore knew that when they said they only engaged women, this included men who identified as women) and that the use of the words “terf, bigot and fascist in [the] organisation shut down nuance and other well-intentioned conversation”. Nonetheless she agreed to follow the current guidance. 

The situation intensified. AB spoke to the CEO and, afterwards, claimed that Ms Adam's attempts to sort things out with her were “violent and humiliating”. MW immediately said that AB didn't have to work with Ms Adams and encouraged her to issue a formal grievance, which she did. 

Disciplinary process

What followed was a deeply flawed investigation and disciplinary process. The allegations against Ms Adams were not fully disclosed to her ahead of the hearings; the investigator decided to expand the scope of the investigation beyond AB's grievance and pro-actively sought out other evidence of Ms Adams's alleged transphobia; the disciplinary letter set out allegations of gross misconduct which were then reduced to misconduct and the panel lied about the reasons for this. Plus, the outcome had already been decided: the CEO had expressed the view that Ms Adams was transphobic and this framed how the people involved in the disciplinary process dealt with the allegations.

Ms Adams resigned. She brought claims of constructive unfair dismissal and various forms of discrimination linked to her gender critical beliefs or lack of belief in gender identity. 

Decision

Unsurprisingly Ms Adams succeeded with her claims. The tribunal's judgment is damning and it made the following findings of fact:

• Witnesses for the centre all held strong views based on gender identity, which were the “exact opposite” of those held by Ms Adams. They believed that there is no such thing as biological sex and that a trans woman is a woman
• Describing Ms Adam's email about AB as humiliating and transphobic was “nonsense” and AB's reaction to it was “completely overblown”
• AB's right to privacy would not have been infringed by telling a service user that she was born a woman who now identifies as non-binary, and the centre was wrong to conclude that this was unlawful
• The CEO'S response to Ms Adam raising legitimate concerns was “egregious” and telling people that she was transphobic had the proscribed effect on the disciplinary panel
• It was “extraordinary” for the CEO to invite AB to raise a grievance and to separate her from Ms Adams before any investigation had taken place
• Broadening the investigation amounted to a “heresy hunt” whose purpose was to make it clear to Ms Adams that her beliefs were unacceptable. It was "deeply flawed" and “reminiscent of the work of Franz Kafka”
• The disciplinary process was “completely spurious and mishandled”

These were all acts of harassment - and in many instances were intended to harass Ms Adams. The tribunal went on to say that if it was wrong about that, then it would have found that the centre directly discriminated against Ms Adams on the basis of her beliefs, and if it was incorrect about that, it discriminated against her on the basis of the manifestation of her beliefs. It also found that the centre indirectly discriminated against her by its policies and practices which placed her at a particular disadvantage and were not justified. 

Comment

This is one of the most scathing judgments I have ever read. It should give those organisations that believe that gender critical/ sex realist views are inherently wrong, pause for thought. The Forstater decision established that these views are widely held and are worthy of respect in a democratic society. But the message doesn't seem to be getting through and we are seeing a steady stream of cases going against employers who have hounded out staff with similar views on the basis they are transphobic or hateful.

In this case, the centre allowed its own ideology (which the tribunal defined as being “at the very extreme of gender identity theory”) to colour its treatment of Ms Adams and to rape victims that wanted female counsellors. The CEO (who didn't give evidence) was found to be the “invisible third hand” behind everything that took place whose agenda was to “cleanse" the organisation of those who did not adhere to its beliefs.

This judgment has caused profound reputational damage to the centre. Rape Crisis Scotland has commissioned an independent review of practices and procedures on the back of it and there is pressure on the CEO to resign (which they have, so far, resisted).

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