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Case law update: employees with gender-critical views

Education / 16 September 2021

A brief background

The Equality Act 2010 (“EqA 2010”) prohibits discrimination, harassment and victimisation in the workplace in respect of nine “protected characteristics”.  One of those protected characteristics, under section 4, is religion or belief.  The definition of “belief” included in the EqA 2010 is “any religious or philosophical belief” and a reference to belief includes a reference to a lack of belief.

Previous case law has established several criteria that a belief must meet for it to become a “protected” belief under the EqA 2010.  One of those is that it must be “worthy of respect in a democratic society”.

Facts of Forstater v CGD Europe & others

The Claimant, Ms Forstater, was engaged as a consultant by CGD Europe and carried out work on specific projects.  Ms Forstater believed that a person’s sex was “biologically immutable” and that this idea shouldn’t be conflated with ideas about gender or gender identity.

For example, she believed that being female is a biological fact that cannot be altered and as a result, transgender women were, in reality, not women.  She also acknowledged that whilst it is possible for individuals to legally change their gender, she didn’t think this had the effect of changing their actual sex.

Ms Forstater’s views came to light when she posted them on social media and engaged with other users about her feelings on these issues.  While doing so, she made some comments which some transgender people found offensive.  In addition, some of her colleagues complained that they found her social media activity offensive.  An investigation was carried out and CGD Europe decided not to renew the consultancy arrangement they had with Ms Forstater.

In response, Ms Forstater brought claims in the Employment Tribunal (“ET”) for (amongst other things) discrimination on the basis that her gender-critical beliefs were a protected philosophical belief under the EqA 2010.

At the first hearing in the ET, it was held that Ms Forstater’s beliefs were not “worthy of respect in a democratic society”.  She appealed to the Employment Appeal Tribunal (“EAT”).

EAT decision

On appeal, the EAT disagreed with the ET’s decision and decided that Ms Forstater’s beliefs were worthy of respect in a democratic society, and therefore her beliefs were protected under the EqA 2010.

The EAT considered that although her beliefs were offensive to some and had the potential to sometimes result in harassment of transgender people, her beliefs were also widely shared, including amongst some respected academics, and holding them did not seek to destroy the rights of transgender individuals.

However, the EAT did add a number of caveats to their judgment, making the following points:

  • The judgment did not mean that those with gender-critical beliefs can freely “misgender” transgender people;
  • The protections for transgender people conferred by the EqA 2010 still remain; and
  • Employers still continue to be liable (subject to any “reasonable steps” they have taken) for acts of harassment and/or discrimination against transgender people committed in the course of employment.

Our comment

This is a controversial case.  However, the judgment gives unambiguous clarification that all but the most extreme beliefs are “worthy of respect in a democratic society”. It should therefore result in less time spent by an ET analysing whether a belief is protected in the first place and enable the focus instead to be on whether there has been an act of discrimination.

In addition to their duty not to discriminate under the EqA 2010, public bodies should remember their positive duty under the Human Rights Act 1998 to act in accordance with the principles set out in the European Convention on Human Rights. For universities and colleges, where freedom of speech is a key issue and the trans rights debate has given rise to complaints of exclusion for gender critical academics, this judgment may lead to a wider discussions on whether meaningful debate on these issues is being unjustifiably (and possibly unlawfully) curbed.

Our team has extensive experience in advising employers on minimising the risks associated with discrimination claims.  If you would like to discuss a query with us, please get in touch.

 

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This update is for general purposes and guidance only and does not constitute legal or professional advice. You should seek legal advice before relying on its content. This update relates to the prevailing circumstances at the date of its original publication and may not have been updated to reflect subsequent developments. If you have general queries about our updates, please email: mailinglists@greenwoodsgrm.co.uk

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