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Gender Critical

Wednesday, Feb-01, 2023

Gender Critical

The debate around trans-gender and gender critical beliefs is fast moving and at times contentious. It affects many areas of society and has been the subject of a number of employment law cases looking at the rights of individuals to hold beliefs and how those might be expressed. Here our Head of Employment Law Iain Jenkins looks at some of the issues.

The Forstater case was an interesting and well publicised decision which reached the Employment Appeal Tribunal. Ms Forstater had gender critical beliefs including that a person’s biological sex should not be conflated with gender or a gender identity. These beliefs have also been expressed by other high profile individuals, creating at times a social media storm.

Ms Forstater had written various tweets reflecting her opinion that people are born either male or female and that position does not change even if a trans person has received medical treatment. Complaints were made by colleagues, an investigation took place and Ms Forstater’s contract as a consultant was not renewed. The Employment Appeal Tribunal (EAT) found that her views amounted to a “philosophical belief” and were therefore protected under the Equality Act 2010.

As in many employment cases it was referred back to the Employment Tribunal which upheld her claims for direct discrimination and harassment. The decision not to renew the contract was less favourable treatment on the grounds of her belief.

This is not an invitation to express gender critical views in the workplace in whatever way you wish. In this case the Tribunal found that Ms Forstater had expressed her views in an appropriate manner and whilst those views might be offensive to some, she was entitled to do so. The important thing is that views are expressed appropriately and not in such a way that might amount to discrimination or harassment. Many employers are undertaking training to help with an understanding of the issues involved.

Another case related to a Christian doctor (Mackereth) who resigned as a Health and Disability Assessor at DWP because he refused to address transgender claimants by their chosen pronoun.

The EAT held that the Tribunal was wrong to find that Dr Mackereth’s beliefs were not protected. Under the test, it had imposed too high a threshold in applying the requirement for a belief to be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. The threshold for a belief to be protected is low. This the free speech aspect of the debate but that freedom is not an open invitation to denigrate and criticise.

However, in this case the EAT was satisfied that he had not suffered direct discrimination or harassment on the grounds of those beliefs. His employer had asked him to clarify his position but had not put him under any pressure to renounce his beliefs and had not made a final decision to dismiss him. The Employment Tribunal had been entitled to draw a distinction between Dr Mackereth’s beliefs and the way he wished to manifest those beliefs.

Another claim which generated some interest was that brought by barrister, Allison Bailey, against her chambers, Garden Court, and Stonewall. She was found to have suffered victimisation and discrimination as a result of her gender critical beliefs in her claim against Garden Court. They jumped in feet first when complaints were made about her views, publicly tweeting that it would launch an investigation (subsequently shown to be flawed) into complaints they had received. Stonewall made a complaint following assertions Allison Bailey made about their campaigning on the issue. She also brought proceedings against them, on the evidence the claim against Stonewall failed.

These decisions are of great interest and show how employers have to balance the rights of individuals with competing beliefs. An expression of gender critical views in the workplace might not be contrary to the Equality Act but depending on how those views are expressed could start to amount to harassment/discrimination.

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