8 September 2022 by Susanna Spencer

Gender Critical beliefs

For several years now social media has been alive with heated discussion on the Gender Critical and Transgender “debate”, with celebrities such as JK Rowling regularly tweeting on the topic.

It is now clear that Gender Critical beliefs (essentially the belief that sex is biologically immutable, different to gender identity, and that it is impossible to change sex), qualify for protection from discrimination under the Equality Act 2020.

But what are Gender Critical beliefs, how did they qualify for protection, has anyone won a claim on this basis, and what does this all mean for employees and employers?

What is a protected belief?

The Equality Act 2010 provides protection for employees from discrimination on multiple grounds including religion and “philosophical belief”.

In order to qualify for protection, a belief must:

  1. be genuinely held;
  1. be a belief rather than an opinion or viewpoint based on the present state of information available;
  1. be a belief as to a weighty and substantial aspect of human life and behaviour;
  1. attain a certain level of cogency, seriousness, cohesion and importance (similar to a religious belief);
  1. be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

Examples of beliefs found to qualify for protection include beliefs in Scottish Independence, Ethical Veganism and Stoicism.

How and why do Gender Critical beliefs qualify for protection?

The Employment Appeal Tribunal (EAT) held in June 2021 that Gender Critical beliefs can qualify for protection under Article 9 of the European Convention on Human Rights (the right to protection for freedom of thought, conscience and religion) and therefore under the Equality Act 2010 too.

The EAT stated that the Gender Critical beliefs in question “may well be profoundly offensive and even distressing to many others, but they are beliefs that are and must be tolerated in a pluralist society”. It confirmed that the threshold is relatively low to qualify for protection under the 5th criterion above, and that only views akin to Nazism or totalitarianism would be excluded.

Gender Critical belief discrimination claims

Following on from this decision, an employee who is dismissed or treated detrimentally at work because they hold Gender Critical beliefs could successfully claim discrimination in the Employment Tribunal and recover compensation for injury to feelings or loss of earnings.

There have been three interesting decisions on this topic recently, where employees have sought to argue claims on this basis, with varying results:

  1. In July 2022, the Employment Tribunal (ET) held in Forstater v CGD Europe & Others, Maya Forstater, a Think Tank Researcher was directly discriminated against and victimised because of her Gender Critical beliefs when she was not offered an employment contract; her visiting fellowship was not renewed; and her profile was removed from CGD’s website.

Ms Forstater had tweeted extensively on the topic of her Gender Critical views, commenting for example that “a man’s internal feeling that he is a woman has no basis in material reality”. Colleagues took offence and complained, but the ET upheld several of Ms Forstater’s claims, finding that the manifestation of Ms Forstater’s beliefs was not such that objection could reasonably be taken.

  1. In July 2022, the ET held in Bailey v Stonewall Equality Ltd & others that Allison Bailey, a criminal defence barrister at Garden Court Chambers (GCC) had been directly discriminated against and victimised by GCC due to her Gender Critical beliefs.

Allison Bailey had tweeted in 2019 about her Gender Critical views and concerns about self-ID and the LGBTQ+ campaigning group Stonewall. GCC received complaints alleging that Ms Bailey’s views were “transphobic”.

The ET held that GCC discriminated against Ms Bailey when it tweeted that the complaints would be investigated under a complaints procedure (a step the ET found was unnecessary and unfair in the circumstances), and due to GCC finding that two of her tweets were likely to breach the core duties of the Bar Standards Board.

The ET found that Ms Bailey’s beliefs were protected, and she was discriminated against due to her belief and not the way she had manifested it. It noted that “belief need not only be expressed nicely in a democratic society”.

  1. In June 2022, the EAT held in Mackereth v Department for Work and Pensions (DWP) that David Mackereth, a Christian doctor was not discriminated against by the DWP due to his refusal to refer to transgender service users’ pronouns of choice.

The EAT held that some of Dr Mackereth’s beliefs concerning transgenderism, including his lack of belief that a person can change sex, qualified for protection under the Equality Act 2010 (as did his Christian beliefs).

However, in the circumstances, DWP had acted reasonably by requiring Dr Mackereth to refer to transgender service users by their preferred pronouns. His role involved assessment of service users making claims for disability-related benefits, and transgender service users were likely to be particularly vulnerable.

It was also relevant that DWP had tried to explore whether Dr Mackereth’s belief could be accommodated in other ways, for example giving him a non-customer facing role, or ensuring he did not assess transgender service users. On the facts of the case, this was not possible to accommodate, and DWP’s policy was justified.

What should employers do about all of this?

Given the strong views on either side of the “Gender Critical debate”, possibilities for rapid escalation of controversy, disputes and the potential for reputational damage, it is important for employers to be alive to these issues and comfortable responding in the event of a workplace issue or disagreement.

Employers should ensure they have appropriate policies in place to deal with differing views of staff, and which set out the business’s expectations for how employees can ensure they treat each other with respect and tolerance at work.

If you require any assistance for your business with any of these issues, please do not hesitate to get in touch with Susanna Spencer.

25 August 2022 by

Model Articles not suitable for sole director companies

What are the Model Articles? Every company must have a set of ‘articles of association’, which sets out the rules […]

2 September 2022 by

New Build Warranties

If you have recently purchased a newly-built property, the developer would have been required to provide a new home structural […]

Signup To Our Weekly e-News

"*" indicates required fields

We’ll never share your details with any third party in line with our privacy policy.