Insights

Gender not-so-neutral: Trans rights and gender-critical views at work

14/06/2021

It's not every day that JK Rowling retweets an Employment Appeal Tribunal judgment.   The fact that the Harry Potter author publicly applauded Maya Forstater's successful appeal indicates how high-profile - and how fraught - the public debate about gender identity and trans rights has become.   

The Claimant, Maya Forstater was a consultant for the Centre for Global Development.   After she tweeted her 'gender critical' views (see below) and opposition to reform of the Gender Recognition Act, the CGD decided not to renew her contract.   She brought a discrimination claim, alleging that she had been discriminated against because of her protected belief.

What was her belief?

Ms Forstater's view, in summary, is that humans cannot change sex and that trans women are therefore men.  She was opposed to the (now abandoned) proposed changes to the Gender Recognition Act which would have de-medicalised the process of changing legal sex and believed that changing legal sex under the Act did not alter the individual's biological sex - so that a trans woman with a gender recognition certificate was still, in her view, a man.   She stated that she would, out of politeness, respect individuals' choice of pronouns (he/she/they etc) and preferred names, in most circumstances but did not believe she was obliged to do so in all circumstances (e.g. when discussing single sex spaces). 

The Employment Tribunal decision

At a preliminary hearing, the Employment Tribunal ruled that her belief was not protected under the Equality Act.   Under previous caselaw, a non-religious belief is protected if the belief:

  • is genuinely held
  • is a belief and not an opinion based on present available information
  • concerns a weighty or substantial aspect of human life and behaviour
  • has a level of cogency, seriousness, cohesion and importance, and 
  • is worthy of respect in a democratic society and not incompatible with human dignity or the rights of others. 

The Tribunal held that her belief failed this test because it was 'absolutist' and was not worthy of respect in a democratic society.  This was partly because her insistence that biological sex could not be changed and that trans women were, in fact, men, could amount to harassment (if, for example, she deliberately referred to a trans colleague using the incorrect pronouns). 

The Tribunal's judgment was heavily criticised by some, and both Index on Censorship and the Equality and Human Rights Commission intervened in the appeal, arguing that the Tribunal had misapplied the law and not given enough weight to the right to freedom of expression.  

What did the Employment Appeal Tribunal decide? 

The Employment Appeal Tribunal decided that her belief was protected and so her discrimination claim will proceed to trial.   In particular, the EAT ruled that for a belief not to be "worthy of respect in a democratic society", it had to be akin to Nazism or totalitarianism - i.e. fundamentally incompatible with human rights, pluralism and democracy.   It ruled that the Claimant's belief, while offensive to some, didn't come close to meeting that threshold.   As a result, her claim will be heard by a Tribunal, which will need to determine whether CGD's decision not to renew her contract was unlawful discrimination. 

What lessons does the case have for employers?

The EAT judgment, unusually, began with a list of what the judgment wasn't about.   The EAT stated that the judgment didn't mean that misgendering or other harassment of trans staff is permitted - trans staff are protected from harassment and discrimination under the Equality Act.   Employers should continue to ensure that anti-discrimination and harassment policies make this clear (and should make sure that staff have received up-to-date equality and diversity training).

Neither was the EAT expressing any view about the legitimacy or otherwise of the Claimant's views. For several years, there has been a fervent and sometimes vitriolic public debate about gender identity and how this interacts with women's rights to single-sex spaces, women's sports participation and so on.   The EAT wisely did not get embroiled in those issues. 

However, the case does highlight the need for employers to not react in a kneejerk fashion when staff express controversial views publicly or in the workplace.  The range of beliefs protected under the Equality Act is broad, as this case emphasises.   The fact that a member of staff disagrees with or offended by another member of staff's views should not inevitably lead to disciplinary action, dismissal or other sanctions.   Employers should respect individuals' rights to express their views, providing this does not cross the line into workplace harassment or adversely affect their work.  Employers should also ensure that policies on social media use strike the right balance between protecting the business and its staff while also not unfairly restricting freedom of expression. 

There aren't any easy answers for employers here.   Although 'cancel culture' has become a clich√©, it's probably true that some staff are more willing to challenge views that they find offensive - and that's a welcome development.   However, employers may in turn need to challenge staff on occasion, to emphasise that diversity of opinion is welcome, so long as staff treat each other with respect and avoid imposing their personal views on their colleagues.   It's a difficult balance to strike, and this case is unlikely to be the last such dispute to end up in a Tribunal. 

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