Back in June 2021, in Forstater v. CGD Europe and others, the Employment Appeal Tribunal (EAT) held that gender-critical beliefs - beliefs that biological sex is real, important, immutable and not to be conflated with gender identity - are protected philosophical beliefs under the Equality Act 2010. However, this does not mean that those with gender-critical beliefs can indiscriminately and gratuitously refer to a trans person in terms other than that trans person would wish. Such conduct can still be unlawful harassment or discrimination, depending on the context.
The claimant in Forstater holds these gender-critical beliefs. She considers that statements such as "woman means adult human female" or "trans women are male" are statements of neutral fact and are not transphobic. After some of her work colleagues complained about her tweeting these views, her consultancy contract was not renewed. She claims that her beliefs amounted to a protected 'philosophical belief' under the Equality Act 2010 and she was discriminated against because of her beliefs.
The Employment Tribunal decided as a preliminary issue that her beliefs were not a protected 'philosophical belief' under the Equality Act 2010 because they were not worthy of respect in a democratic society. The EAT has now overturned this. Only beliefs akin to totalitarianism or Nazism, or espousing violence and hatred in the gravest of forms will fail the 'worthy of respect' test, because they have the effect of destroying the rights of others. Such beliefs are therefore excluded from protection under Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression) of the European Convention on Human Rights. The EAT held that while the Claimant's gender-critical beliefs are offensive to some, and have the potential to result in harassment of trans people in some circumstances, they are still worthy of respect in a democratic society. The EAT noted that the Claimant's beliefs did not seek to destroy the rights of trans people.
The decision made by EAT is the latest case highlighting the potential clash of rights between two protected characteristics (here, sex and gender reassignment). Previous case law has often focused on the clash arising from religious views about homosexuality. The EAT was at pains to highlight the sensitivities that employers must bear in mind in this context. Employees who are mistreated just because they hold gender-critical beliefs have discrimination protection. However, the manner in which employees manifest their gender-critical beliefs may still be considered harassment or discrimination, depending on the context. The EAT made clear that the judgment did not mean that people who hold gender-critical beliefs can freely mis-gender trans people without impunity. Properly policing what is acceptable behaviour can involve treading a fine line. Employers may wish to review their equal opportunities and anti-harassment policies to ensure that they strike the right balance.
If you would like more information on managing discrimination in the workplace, please get in touch with your usual Mishcon contact or with a member of the Employment team.