Are gender critical beliefs protected by the Equality Act 2010?

A recent case heard by the Employment Appeal Tribunal, Maya Forstater v CGD Europe 2021 established that ‘gender critical’ beliefs, such as the belief that there are only two sexes and that individuals cannot change their sex, are protected under the Equality Act 2010. Our Employment Law team examines how the Tribunal reached this decision and what it means for employers.

Gender critical views on social media

Ms Forstater carried out consultancy work for CGD Europe as a researcher. In 2018, she expressed gender critical views on her personal twitter account, including the statements: “I don’t think people should be compelled to play along with literal delusions like ‘trans-women are women’”, and “radically expanding the legal definition of ‘women’ so that it can include both males and females makes it a meaningless concept, and will undermine women’s rights and protection for vulnerable women and girls.”

After CGD staff raised concerns that Ms Forstater’s views were “transphobic” she was not offered any more consultancy work and her visiting fellowship contract with the company was not renewed. Ms Forstater filed a claim with the Employment Tribunal (ET), claiming that her belief that gender is “biologically immutable” was protected under the Equality Act 2010.

For a belief to be protected under the Equality Act, such a belief must:

1. Be genuinely held;
2. Be a belief and not an opinion or viewpoint based on the present state of information available;
3. Be a belief as to a weighty and substantial aspect of human life and behaviour;
4. Attain a certain level of cogency, seriousness, cohesion and importance;
5. Be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.

The ET found that Ms Forstater’s core belief in the immutability of sex was “absolutist” in nature and would require her to “refer to a person by the sex she considered appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment.” Her beliefs were therefore “incompatible with human dignity and the fundamental rights of others” and “not worthy of respect in a democratic society.” Consequently, the ET ruled her belief was not a philosophical belief worthy of protection under the Equality Act.

Protection under the Equality Act

The Employment Appeal Tribunal (EAT) found that the ET had erred in law and that Ms Forstater’s gender critical views did fall within the definition of philosophical belief worthy of protection under the Equality Act.

The EAT acknowledged that Ms Forstater’s belief “might well be considered offensive and abhorrent to some” but accepted on the evidence that Ms Forstater “believed that it is not ‘incompatible to recognise that human beings cannot change sex whilst also protecting the human rights of people who identify as transgender.’” Justice Choudhury said “That is not, on any view, a statement of a belief that seeks to destroy the rights of trans persons. It is a belief that might in some circumstances cause offence to trans persons, but the potential for offence cannot be a reason to exclude a belief from protection altogether.”

The judgment said that only those beliefs which are “akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms” would not be protected under the Equality Act. The judgment continued: “Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection. However, the manifestation of such beliefs may, depending on circumstances, justifiably be restricted.”

The case was then referred back to the ET to decide whether Ms Forstater was discriminated against due to her belief.

What does this judgment mean for employers?

This case means that employees who hold gender critical beliefs cannot be discriminated against for holding such beliefs. Employers will need to carefully balance the rights of employees who hold such beliefs with the rights of employees who may find such beliefs offensive.

The EAT made sure to state that this decision:

• Does not mean that people with gender-critical views can misgender, or harass transgender individuals with impunity;
• Does not mean that transgender individuals are not protected from discrimination and harassment;
• Does not mean that employers do not need to provide a safe workplace for transgender people.

What should employers do if an employee expresses gender critical views in the workplace?

The expression of gender critical views can still amount to harassment if it has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. The expression of gender critical views may meet this criteria even if they are not directed at a specific transgender person.

Employers may be liable for acts of discrimination or harassment committed by an employee in the course of their employment. Employers should have an equal opportunities policy or equality and diversity policy that clearly states what behaviour is appropriate and acceptable at work. If an employee violates these policies by, for example, intentionally misgendering a transgender employee, they should then be taken through a disciplinary procedure which could result in a written warning or dismissal depending on the seriousness of the harassment.

If you have an questions regarding this area of Employment Law or your policies and procedures are in need of review, you can contact the team on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.