“Gender critical” beliefs are capable of protection under the Equality Act 2010
The Employment Appeal Tribunal (EAT) has ruled that the belief that biological sex is unchangeable and separate from gender identity is a philosophical belief which falls within the protection of the Equality Act 2010.
The EAT’s judgment means that the gender critical belief held by Ms Forstater (read the judgment here) has the same protection from discrimination and harassment under the Equality Act 2010 as other protected characteristics, including gender reassignment. This judgment highlights the tricky balancing act employers face in ensuring that all rights are adequately protected in the workplace.
The claimant, Ms Forstater, expressed her gender critical belief via her personal social media account. Some people, including her colleagues, found her posts offensive and transphobic. She was a consultant for CGD Europe but, following her comments on social media, her consultancy contract was not renewed. Ms Forstater claimed to an Employment Tribunal that she had been discriminated against because of her belief.
Religion or belief is one of several of specified characteristics which are protected from discrimination by the Equality Act 2010. However, philosophical beliefs must meet a number of criteria in order to qualify for that protection.
The Tribunal ruled that Ms Forstater’s belief was not protected by the Equality Act 2010 on the basis that it is not worthy of respect in a democratic society (which is one of the criteria that must be met in order for a philosophical belief to be protected).
Ms Forstater appealed this decision and the EAT found in her favour. The case will now go back to the Tribunal to determine whether she was discriminated against because of her belief.
The EAT accepted that such beliefs are offensive to some people and may still be capable of resulting in harassment of trans people in some circumstances. However, in its reasoning, the EAT confirmed that the bar is high to exclude a belief from protection on the basis that it is not worthy of respect in a democratic society and the belief must be “akin to Nazism or totalitarianism”. The EAT found that Ms Forstater’s belief is widely shared and “did not seek to destroy the rights of trans persons” and as such was not excluded from protection.
Employers must manage the possible clash of protected characteristics in the workplace as they will be liable for acts of harassment and discrimination which occur in the course of employment.
It is advisable for employers to have policies in place, such as an equal opportunities policy and an anti-bullying and harassment policy, which set out the employer’s commitment to preventing discrimination. Employers should provide regular, meaningful training to staff to ensure such policies are understood and to educate staff on the importance of respect for equality and diversity in the workplace. Such measures may assist employers to defend future discrimination claims if they can show that they took all reasonable steps to prevent discrimination from occurring. Of course it is not enough simply to have the policy, steps must be taken to adopt and uphold it too.
As this case arose from Ms Forstater’s posts to her personal social media account, employers should consider putting a social media policy in place setting out its expectations of employees’ behaviour on social media.