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.
Discrimination
Beliefs versus manifestation of beliefs
The ETs in both Forstater and Bailey found that the claimants had been subjected to direct discrimination for expressing their gender critical views. Both had publicly shared their views on social media, which many found offensive, resulting in complaints, and both were found to have been subjected to less favourable treatment as a result ‒ Ms Forstater not having had her contract renewed, and Ms Bailey having been the subject of a public statement on Twitter that complaints received about her comments would be investigated.
Often in such cases, the question of whether the detrimental treatment was because of the claimant’s protected belief or the way in which that belief was manifested can be crucial to whether discrimination has or has not taken place. Sometimes the two can be separated, but often they are so interlinked that they cannot be disassociated.
In Bailey, the respondent argued that their response was to “dampen down the Twitter storm”, although the ET was satisfied that said storm arose from differences in belief on the sex and gender identity debate and that this was indistinguishable from the beliefs themselves. Likewise, in Forstater, the respondent unsuccessfully argued that it was the way that Ms Forstater’s beliefs had been expressed online, rather than the beliefs themselves, that led to the non-renewal of her contract, with the ET concluding that the manifestation of a belief should only be dissociable from the belief itself when it is done in a way that is inappropriate or where objection could reasonably be taken. Although Ms Forstater’s posts were often controversial and provocative, they were not (on the whole) objectively offensive or unreasonable but rather an expression of her views as part of a wider debate on the issues. While one particular post was objectively offensive and unreasonable, the ET did not consider that crossing the line on one occasion was sufficient to justify the action taken against her.
In Higgs, however, the ET found for the employer on this issue. Ms Higgs was dismissed after a series of Facebook posts sharing others’ content and providing her own commentary on the sex and gender identity debate. Here, the ET found that her posts had gone further than an expression of her own beliefs and were objectively homophobic and transphobic.
It is important to note that all three examples given above are first instance ET decisions and are therefore not binding. Ms Higgs has appealed to the EAT.
Employer policies
Mackereth centred on the employer’s policy that transgender patients should be addressed by their declared pronoun. Dr Mackereth, a Christian doctor with gender critical beliefs, refused to do so (although he was happy to refer to them by their declared name). Ultimately, he left his role and brought claims for direct and indirect discrimination and harassment. Dr Mackereth’s claim failed at the ET on the basis that his gender critical beliefs were not protected, and although this point was overturned on appeal (see above), the EAT similarly dismissed all elements of his claim. The EAT did not consider Dr Mackereth to have experienced any less favourable treatment or harassment ‒ he had not been suspended, nor had his employer proceeded any further than an information gathering stage in a dismissal process; he was not put under any pressure to change his beliefs, nor was he interrogated about them; and his employer had actively tried to find a way to accommodate his beliefs (but a non-service-user-facing role was not possible, nor was allowing him only to see cisgender service users). The EAT was also satisfied that any employee who was not prepared to use a service user’s declared pronoun would have been treated the same way by the employer regardless of their beliefs.
Turning to whether the pronoun policy was indirectly discriminatory, the EAT considered the policy to have legitimate aims of ensuring transgender service users were treated with respect and in accordance with their identities, and of promoting equal opportunities, and that the pronoun policy was a proportionate means of achieving those legitimate aims, particularly in view of the steps the employer had explored to accommodate the claimant’s beliefs.
It is understood that Dr Mackereth intends to appeal the EAT’s judgment.
Top tips and reminders for employers
- One protected characteristic cannot trump another: As there is no hierarchy of protected characteristics in the EqA, this can be tricky for employers managing competing rights. Employers should remember to revert to legal principles around discrimination and consider any specific guidance in place, and not be swayed by their own subjective beliefs.
- Take care distinguishing conduct from beliefs: As many of the cases discussed above highlight, employers will be in a stronger position where they can take action against workers for their conduct when manifesting their views, but it is not always straightforward, or possible, to adequately separate conduct from the beliefs themselves.
- Instil a culture of dignity and respect: Disagreements over a variety of subjects are not unusual, and healthy and respectful debate is a normal part of life, although this does not give individuals carte blanche to say whatever they like. All workers should be treated with dignity and respect, and discriminatory behaviour should not be tolerated, although sometimes employers and staff will have to tolerate views that they do not agree with.
- Use language carefully: Consider using gender-neutral drafting in workplace policies, procedures and other documentation, and where reference to ‘men’ or ‘women’ is required, consider whether definitions of those terms need to be updated to include those who identify as such or are non-binary. In respect of pronouns, employers should not necessarily insist that pronouns are declared, instead leaving this to individual choice.
- Revisit social media policies: Employers may benefit from revisiting their social media policies and ensuring they provide guidance and sufficient coverage for workers sharing their views on social media, particularly on topics that could be seen as controversial, discriminatory or in conflict with others’ rights. An outright ban on social media use is perhaps unfeasible, but with Forstater, Bailey and Higgs all involving posts and debates online, it is a common way for views to be manifested.
- Understand and justify your rationale: Where risks of discrimination and conflict run high, employers should think carefully when making policy or other decisions in the workplace. Even where policies apply to everyone, they may disadvantage people with one or more of the protected characteristics. This is not necessarily discriminatory unless the policy cannot be objectively justified as a proportionate means of achieving a legitimate aim. As Mackereth shows, employers who can clearly articulate their legitimate aims and demonstrate that their approach is proportionate with reference to alternatives will be in a stronger position.
- Implement regular training: The mere existence of anti-discrimination policies is not sufficient for an employer to demonstrate they are taking steps to avoid discrimination. Policies should be actively brought to the attention of workers, and equality, anti-harassment and unconscious bias training should be a regularly repeated feature of all businesses.
- Consider communal spaces, facilities and services: Employers should ensure that all workers, visitors, clients and/or service users have access to facilities and services where they are comfortable, can feel respected and safe, and can be free from hostility. This may require employers to revisit their bathroom, shower and changing room accommodation, and their identification and security measures. Similarly, employers who employ or provide services to vulnerable people may need to think carefully about how to balance the needs of those service users with the rights of staff. In Mackereth, the vulnerability of transgender service users was relevant to the outcome of the claim. Similarly, where organisations provide services to other vulnerable groups (e.g., victims of sexual abuse), the welfare of those service users may result in having to exclude employees of a particular sex or gender identity from working with them.
Navigating the complexities of the EqA, particularly where protected characteristics conflict, can be difficult for employers. Employers faced with issues of this nature are advised to seek advice to work through the legal implications of any course of action.
In-Depth 2022-233
