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Gender-critical views are a protected belief

Employment / 16 June 2021

The EAT has held that gender-critical views, which include the belief that biological sex is immutable and not to be conflated with gender identity, are protected beliefs under the Equality Act 2010.

In Forstater v CGD Europe & others, the Claimant engaged in debates on social media about gender identity issues, and in doing so made remarks which some trans gender people found offensive and “transphobic”.  Some of her colleagues at work complained that they found her comments offensive, and following an investigation, her visiting fellowship was not renewed. The Claimant claimed that she was discriminated against because of her beliefs.

Overturning the Employment Tribunal’s earlier decision that the Claimant’s gender critical beliefs were “not worthy of respect in a democratic society” and were therefore not protected, the EAT held that the beliefs were ones that were widely shared, including amongst respected academics, and that holding them did not seek to destroy the rights of trans persons.  This was notwithstanding the fact that the beliefs were offensive to some and had the potential to result in the harassment of trans persons in some circumstances.

However, the EAT was very clear to point out that:

—  This decision does not mean that those with gender-critical beliefs can “misgender” trans persons with impunity.  The usual prohibitions on discrimination and harassment apply.

—  Trans persons are still protected from discrimination and harassment under the Equality Act 2010 and employers will continue to be liable (subject to any applicable defence) for acts of discrimination and harassment committed in the course of employment.

 

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