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Gender Critical Beliefs in the Workplace

The Employment Appeal Tribunal had previously determined in the case of Forstater v CGD Europe that an individual’s gender critical beliefs could satisfy the established criteria required in order to be considered a philosophical belief and therefore be considered a protected characteristic under the Equality Act 2010 (EqA).  It was acknowledged that, even if the beliefs may be considered offensive, as long as the individual is not trying to destroy the rights of other people it could amount to a philosophical belief protected by the legislation.

Under the EqA, it is direct discrimination to treat a person less favourably because of their religion or belief.  Ms Forstater strongly believed that a person’s sex is an immutable biological fact, and that a trans woman is not a woman. She publicised these beliefs in social media debates and brought materials into the office which stated that allowing gender self-identification was “stupid”, “dangerous” and “unfair to women”. After complaints from her work colleagues, CGDE held an investigation and consequently decided not to renew her contract or her visiting fellowship and removed her profile from their website. Forstater claimed direct discrimination and victimisation.

The ET found that the actions by CGDE were at least in part because of Forstater’s beliefs (and not because of the way in which she manifested those beliefs) and therefore upheld her direct discrimination claim.  Key to the decision was whether her comments and statements were objectively offensive, unreasonable or inappropriate in the context of engaging in debate on a matter of public interest. The ET considered her comments to be uncomplimentary and provocative, but the majority still found that they were not an inappropriate manifestation of Forstater’s beliefs in the context of the ongoing debate.

It is important to contrast this with the recent case of Mackereth v DWP. This involved a doctor who held gender critical views and refused to address transgender service users by their preferred pronouns in accordance with the employer’s policies and had ultimately left employment as a result.  The doctor’s claim was unsuccessful.  One of the key differences was that the employer’s conduct was found to have been a response to the way the doctor manifested his beliefs and not just because he held those beliefs.  The Employment Appeal Tribunal (EAT) found that anyone who refused to address these potentially vulnerable service users in the manner they requested would have been treated the same way, regardless of their beliefs.

These cases demonstrate how important it is for employers to take great care when taking action in response to an employees’ beliefs.  Employees are permitted to engage in public debate as long as it is clearly their own personal statement and not one attributed to or connected with the employer.  Of course if an employee’s beliefs are expressed in an offensive way to a colleague, customer or client or otherwise prevent them from carrying out their role effectively there may be grounds to take further action, but we strongly recommend you take legal advice before taking such steps.  For example, one of the obvious differences in the two cases above is that in Mackereth the employer had considered if there were practical options to try to accommodate the doctor’s beliefs.