Insights

Trans rights, freedom of expression and the workplace

27/05/2022

Over the last few years, the public discussion over trans rights has become an increasingly fraught.   A couple of recent Employment Tribunal cases illustrate some of the complexities  for employers in grappling with these issues. 

Maya Forstater, a visiting fellow at a think tank, claims that she lost her role as a result of expressing "gender critical" views - i.e. expressing her belief that biological sex cannot be changed.   The Employment Appeal Tribunal previously ruled that this belief was a protected belief under the Equality Act.  Ms Forstater is arguing that her contract was not renewed after she began expressing her protected belief via social media, on the basis that the think tank she worked for regarded her views as transphobic.  Her discrimination claim in the Employment Tribunal was heard in March and a judgment is expected imminently.   

In a similar vein, Allison Bailey, a barrister at Garden Court Chambers (which specialises in criminal and human rights law) is suing her chambers and Stonewall (the LGBT campaign group) in the Employment Tribunal.   Like Ms Forstater, she had expressed gender-critical views via social media, which prompted complaints and an investigation by her chambers.   She claims that she was denied work as a result.   Her claim for discrimination on grounds of belief is currently being heard by the Employment Tribunal. 

Both cases highlight a difficult area for employers - whether it's legitimate to take disciplinary (or other) action against staff based on personal views expressed via social media, particularly when these have resulted in complaints or public controversy.   Although these cases are fact-sensitive, employers should bear in mind some key points: 

1.   Employers need to consider how extreme the views are.  If someone is posting fringe conspiracy theories or espousing neo-Nazism online, it's highly unlikely that their views will be protected under the Equality Act and more likely that dismissal would be justified. 

2. Has the employee used offensive language?  Even if the employee's views may be a protected belief, caselaw makes it clear that employers may be justified in taking action against views expressed in crude or offensive terms.   The Employment Appeal Tribunal in the Forstater case was careful to emphasise that, although gender critical beliefs are capable of being protected beliefs, that does not mean that trans people can be harassed or misgendered with impunity.   Posts which could amount to harassment are more likely to justify disciplinary action. 

3. How strong is the link with the employee's role?  For example, do the posts call into question whether the employee could act impartially or fairly in their professional life? 

4.  How realistic is it that the post/s will damage the employer's reputation, and are there ways in which this could be mitigated?   

5.  The factors above need to be balanced against the employee's right to express their views in a personal capacity, even on controversial topics. 

From a commercial perspective, employers should also consider the reputational impact of litigation. Both the Bailey and Forstater cases have attracted significant attention on social media, with large numbers of people logging in to the Tribunal's remote hearing system to watch the evidence.  

The particular difficulty posed by public debates on trans rights is that what some people consider a matter of fact (e.g. that biological sex cannot be changed and takes precedence over gender identity) is considered provocative and harmful by others.  The outcomes of these cases may give some guidance to employers seeking to navigate these notoriously choppy waters. 

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