Gender-critical beliefs are capable of being a protected characteristic

The topic of gender identity and sex fuels strong feelings and we know that it can be difficult for employers to decide on the appropriate action to take when dealing with complaints about comments made by staff. The Employment Appeal Tribunal recently issued a judgment on this subject matter and employers should take note of both what the judgment means, and what it does not mean, as we explain below.

The case

In Forstater v CGD Europe and others, Ms Forstater, was a ‘visiting fellow’ for CGD Europe and had entered into consultancy agreements with them. In 2018, Ms Forstater engaged in debates on social media about gender identity issues, and in doing so made some remarks which some transgender people found offensive and transphobic. Some of her work colleagues complained to CGD that they found her comments offensive, and following an investigation, her visiting fellowship was not renewed.

Ms Forstater submitted claims to the Employment Tribunal including that she was discriminated against because of her beliefs.

Philosophical belief

There was a preliminary hearing to determine whether Ms Forstater’s belief amounted to a philosophical belief within the meaning of section 10 of the Equality Act 2010.

The Employment Tribunal considered the guidelines as to what amounts to a philosophical belief from in the case of Grainger plc v Nicholson, which we summarised in our previous article. One of the criteria to be considered is whether the belief is “worthy of respect in a democratic society.”

The Employment Tribunal found that Ms Forstater’s belief was absolutist in nature and that she would “refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment”. They concluded that her belief was not worthy of respect in a democratic society. Ms Forstater appealed.

The decision on appeal

The Employment Appeal Tribunal found that the Employment Tribunal had made the wrong decision in respect of whether Ms Forstater’s belief was worthy of respect in a democratic society. A philosophical belief would only be unworthy of respect if it were the kind of belief the expression of which would be similar to Nazism or totalitarianism, or which supported violence and hatred in its most serious forms. In this case, Ms Forstater’s gender-critical beliefs, which were widely shared, and which did not seek to destroy the rights of trans persons, were clearly not within that category. Her belief was, therefore, a protected philosophical belief.

What the decision does not mean

The Employment Appeal Tribunal was clear that its judgment did not mean that:

• The Employment Appeal Tribunal was expressing any view on the merits of either side of the transgender debate;
• Those with gender-critical beliefs can ‘misgender’ trans persons with impunity;
• Trans individuals do not have protections against discrimination and harassment under the Equality Act 2010; and
• Employers and service providers will not be able to provide a safe environment for trans persons.

Employers will continue to be liable for acts of harassment and discrimination against trans persons committed by their employees in the course of employment, unless they can show that they took all reasonable steps to prevent the harassment or discrimination. Providing equality and diversity training to staff members and keeping it up-to-date can help to protect employers, as we discussed in our recent article.

What will happen now?

So far as Ms Forstater is concerned, her case will now go back to the Employment Tribunal to determine whether the treatment about which she complains was because of, or related to, her philosophical belief.

So far as employers are concerned, it is important to remember that a belief which may be offensive to some, may still be a protected philosophical belief. Whilst the holder of the belief will be protected from being discriminated against because of their belief, likewise, they must not discriminate against others who are protected under the Equality Act.

Whether or not conduct in any given situation amounts to discrimination will be for an Employment Tribunal to determine on a case-by-case basis. We can advise and assist employers dealing with these issues, which are likely to remain contentious for the foreseeable future.