The Employment Appeal Tribunal recently decided that an individual’s gender-critical belief is a philosophical belief under the Equality Act.
This provides legal protection against discrimination and harassment related to their gender-critical belief.
We summarise the facts of this case and its implications for employers below.
Gender critical beliefs are protected under the Equality Act
In a recent case, the Employment Appeal Tribunal held that a consultant researcher’s gender-critical belief that “sex is immutable and not to be conflated with gender identity” is a protected philosophical belief under the Equality Act 2010.
This means that the individual is protected against discrimination, harassment and victimisation on account of the gender-critical belief.
Background to the case
Ms Forstater, a consultant researcher and visiting fellow at CGD Europe, expressed gender-critical beliefs on her personal Twitter account.
Other members of staff raised concerns about her tweets, describing them as transphobic, exclusionary and offensive, which made them feel uncomfortable.
Following an investigation, Ms Forstater was not offered any further consultancy work from CGD, and her visiting fellowship was not renewed.
She subsequently brought claims of direct discrimination and harassment against CGD Europe related to her gender-critical belief.
‘Protected philosophical belief’
For a belief to be considered a protected philosophical belief under the Equality Act 2010, it must satisfy a 5-point test set out in case law.
The belief must:
- be genuinely held;
- be a belief – not an opinion or viewpoint on the available information;
- concern a substantial aspect of human life and behaviour;
- reach a specific level of conviction, seriousness, coherence and significance; and
- be worthy of respect in a democratic society and not be incompatible with human dignity or conflict other fundamental rights.
In this case, the main issue was whether the claimant’s gender-critical belief satisfied the last requirement.
The Employment Tribunal that first considered the case, was concerned that the ‘absolutist’ nature of the belief meant that it was not worthy of respect in a democratic society as it would violate the dignity of transgender people.
The Employment Appeal Tribunal disagreed, finding that only the most extreme beliefs involving the severe abuse of others’ human rights, such as Nazism or inciting hatred and violence, would not be worthy of respect.
Therefore, the outcome is that Ms Forstater’s gender-critical belief, that biological sex is male and female and changing from one sex to another is impossible, is a protected belief under the Equality Act.
It is yet to be decided whether the employer’s actions in terminating her contract amount to direct discrimination or harassment relating to her protected gender-critical belief.
Implications for employers
Just because an individual’s philosophical belief is protected does not mean that they have an unfettered right to express it at the expense of others.
For example, an employee could not use their protected gender-critical belief as a justification for misgendering or otherwise tormenting transgender people at work.
They would still face liability for harassment or discrimination in this situation, like anyone else.
The tribunal has generally taken quite a strict approach to separating an individual’s religious or philosophical belief from the way in which they act upon such beliefs.
A good example is a case concerning a school pastoral administrator who shared posts on Facebook against teaching about same-sex relationships and gender identity.
Her claims of discrimination and harassment failed as she was dismissed because she committed gross misconduct through inappropriate and discriminatory use of social media, which harmed the school’s reputation.
Her dismissal was not based on her religious/philosophical beliefs.
Therefore, it is important for all employers to create a safe and inclusive workplace for transgender people and have suitable measures in place to protect them.
Promoting transgender inclusivity
The key to achieving transgender inclusivity in your business is through understanding and awareness.
It is important that staff and managers know how to communicate effectively and respectfully with different individuals.
Often people are worried about saying the wrong thing and inadvertently offending a transgender person.
As each transgender employee will have their own individual preferences, there is no one-size-fits-all approach that can be adopted.
The best approach would be to talk individually with any trans employee to get to know them and ensure that you address their needs and interact in a way that they are comfortable with.
Transparency and support
Creating a safe work environment where transgender employees feel supported and included is important because the transitioning process can be challenging.
As transitioning involves major complexities in several aspects of an individual’s personal and work life, it can take a toll on their mental health as well as their close friends and family.
You may not notice that an employee is struggling if it is not them that is transitioning, so you should try to create an open culture so that all employees know how to access support.
Inevitably the measures you can introduce to create an inclusive work culture will depend on the size of your organisation.
A simple approach would be to introduce a policy on transgender equality.
If you have the facilities, you could create a Pride or LGBT group within your business so that employees can relate to each other and provide support.
Creating a truly inclusive workplace involves actively promoting transgender rights and providing the support and protection needed.
It is not enough to simply include generic equality statements within policies and on job descriptions without actually having any measures in place.