Gender identity in the workplace

Answer

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The Employment Appeal Tribunal (EAT) recently held in Forstater v CGD Europe and others that holding gender-critical beliefs will amount to a protected characteristic under the Equality Act 2010. As employers continue to grow and support a diverse and talented workforce, how can they ensure employees can respectfully and freely share their views? 

The Equality Act 2010

Under the Equality Act 2010, employees are protected from discrimination that has resulted from a ‘protected characteristic’. One of these protected characteristics is gender reassignment, which is explained in the Equality Act as: “A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the persons sex by changing physiological or other attributes of sex.”

This has been interpreted as protecting people who have transitioned, in the process of transitioning and recently also gender-fluid and non-binary people in Taylor v Jaguar Land Rover Ltd.

A person's religion or belief is also a protected characteristic under section 10 and this covers people’s philosophical beliefs. The Explanatory Notes to the Equality Act set out a criteria for determining what is a philosophical belief. This includes the following five elements:

1.     The belief must be genuinely held.

2.     It must be a belief, not an opinion or viewpoint based on the present state of information available.

3.     It must be a belief as to weighty and substantial aspect of human life and behaviour.

4.     It must attain a certain level of cogency, seriousness, cohesion and importance.

5.     It must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.

It is the fifth element of this criteria that was discussed in Forstater when Maya Forstater argued that she had been unfairly dismissed due to her philosophical belief that biological sex is immutable.

Facts of the case

Maya Forstater posted a series of tweets questioning government plans to let people declare their own gender. As a result, she did not have her contract renewed with the Center for Global Development (CGD) where she had worked as a tax expert. Forstater held the belief that “biological sex is real, important, immutable and not to be conflated with gender identity”. She also believes that trans women holding certificates that recognise their transgender identity cannot describe themselves as women. When CGD chose not to renew her contract because of the tweets Forstater brought a claim for unfair dismissal due to discrimination.

The Employment Tribunal

The Employment Tribunal judge first held that her beliefs cannot be a philosophical belief (and thus not a protected characteristic) because they are “not worthy of respect in a democratic society”. The judge found that Forstater was “absolutist” in her views and that “she will refer to a person by the sex she considered appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment”. 

The Employment Appeal Tribunal

Forstater appealed this decision and on 10 June 2021 the EAT held the High Court judge had erred in law. The EAT ruled that gender critical beliefs do fall under the Equality Act as they do not seek to destroy the rights of trans people. No comment was given on the merits of her discrimination claim as a tribunal will now determine whether Forstater’s treatment was because of her beliefs. 

The EAT explained that for a belief to “not be worthy of respect in a democratic society” it would only be those “akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms”. They noted that beliefs that are offensive, shocking or disturbing to others would not be excluded from the protection of the Equality Act.

The EAT made it clear that they had not expressed any view on the merits of either side of the transgender debate but did acknowledge that some transgender people would be disappointed by the judgment.

The solicitors for Forstater’s Employer (CGD) noted that the decision will “leave marginalised groups more vulnerable to discrimination and harassment and place employers in an impossible position”.

How does this impact employers?

While the case has attracted a lot of press attention, it is important to note that holding gender-critical beliefs cannot lead to employees expressing their belief inappropriately, such as by showing discriminatory behaviour towards trans people. The judgment was clear that those with gender-critical beliefs are unable to misgender trans people with impunity and trans people are protected against discrimination and harassment. 

The practical impact of this decision is that employers must now move cautiously when handling employees with conflicting philosophical beliefs. As employers are encouraged to develop their ESG strategies a balanced approach should be taken, enabling employees to freely express their views without harassment or discrimination. 

Where employees discriminate or harass their colleagues based on their beliefs then this must be investigated and appropriate disciplinary steps should be taken. However, any allegations must be carefully considered to ensure both beliefs have been appropriately evaluated. 

Molly Fellows (she/her/hers) is a trainee solicitor at DWF and is currently on secondment at Amazon.