Reed Smith In-depth

There has been a significant shift in individual and societal openness around sex and gender identity in recent years. The debate is a complex one and inevitably there is a range of views and opinions on the issues, providing scope for disagreement and conflict. We are increasingly seeing employment tribunal claims with sex and gender identity at their core, and as a result, there is developing case law on where the issues fit within existing employment laws. This article considers some of the recent employment litigation and provides tips for employers faced with navigating such complex issues.

Gender critical beliefs protected under the Equality Act 2010

The cases discussed in this article involve claimants who share the broad view that a person cannot change their sex, a belief that tends to be referred to in general terms as “gender critical”, although individuals’ specific beliefs may vary around this concept. In Higgs v. Farmor’s School, Mrs Higgs does not believe in gender fluidity or that a person can change either their sex or gender. In Forstater v. CGD, Ms Forstater holds the belief that while a person can identify as another sex (and she would respect that), self-identification or being in receipt of a gender recognition certificate (GRC), does not change their actual sex. In Mackereth v. DWP, Dr Mackereth holds the belief that a person cannot change their sex or gender, and he disagrees with gender self-identification. Finally, in Bailey v. Garden Court Chambers and Stonewall, Ms Bailey believes that someone is defined by their sex and not gender self-identity, and that gender theory is detrimental to women.

The employment tribunal (ET) in Higgs found the claimant’s beliefs to have protection under the Equality Act 2010 (EqA) as a “philosophical belief”. This decision was not appealed, and as a first instance decision, it was not binding. Rather, it is the later Forstater and Mackereth that have led the way to date on whether gender critical beliefs are capable of protection under the EqA, and while both claims were originally unsuccessful in the ET on this point (failing on the test of whether the claimants’ views were worthy of respect in a democratic society and in conflict with fundamental rights of others), the employment appeal tribunal (EAT) disagreed. Although, in theory, capable of further appeal, it appears settled for the time being that individuals holding gender critical beliefs are capable of having protection under the EqA, and later cases have successfully referred to Forstater as the authority on this issue.

Equality Act conflict

Gender critical beliefs clearly provide scope for conflict with other protected characteristics under the EqA, particularly gender reassignment, although the protected characteristics of sex, sexual orientation, disability and religion may also be interlinked.

This conflict poses particular challenges for employers who are responsible for preventing discrimination and harassment in the workplace and promoting diversity, equality and inclusion. Even the most well-intentioned employers can find themselves subject to litigation if they fail to adequately balance the competing issues.

Of course, conflict between protected characteristics is nothing new – the conflict between religious beliefs and sexual orientation, for example, has been the subject of litigation cases for a number of years. While the specifics of such cases are not covered in this article, lessons learned from these cases can help employers navigate some of the challenges.