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Gender critical beliefs: a narrow and difficult path

Last year, the Employment Appeal Tribunal (“EAT”) held in Forstater v CGD Europe that, in principle, “gender critical” beliefs are capable of protection under the Equality Act 2010 (“EqA”).  This decision received significant press overage at the time and fed into the controversial debate between those with gender critical beliefs (who believe that biological sex is immutable and binary) and those that believe that people are the gender they say they are, regardless of biology.  The EAT sent the case back to a fresh Employment Tribunal (“ET”) to look at the merits of the case.

In a significant case for employers, the ET has now handed down its decision on Maya Forstater’s claim.  It found that she was directly discriminated against and victimised on the grounds of her belief, although her indirect discrimination and harassment claims failed.

ET’s decision in Forstater

Ms Forstater’s fellowship and employment contract with think tank CGD were not renewed after she made comments on social media about gender identity issues which highlighted her gender critical beliefs.  The ET considered whether Ms Forstater had manifested those beliefs in a manner to which objection could reasonably be taken or in an inappropriate manner.  After looking very closely at her tweets and actions, the ET found that the manifestations of her belief were not objectively offensive or unreasonable.  The ET also rejected CGD’s argument that it was being compelled to manifest a gender-critical belief by its association with Ms Forstater.

EAT’s decision in Mackereth

Shortly before the ET’s finding in Forstater, the EAT upheld an ET’s decision that a Christian doctor was not discriminated against on the grounds of religion or belief when he resigned after refusing to address transgender people by their chosen pronouns in his role as a disabilities assessor.  In Mackereth v DWP, the claimant relied on his biblical belief that a person cannot change their sex/gender at will and his lack of belief in what he described as “transgenderism”.  In dismissing his claims, the EAT held that, whilst Dr Mackereth was disadvantaged by being required to use people’s preferred pronouns, this was a necessary and proportionate way for the DWP to achieve its legitimate aims (which in this case were to ensure transgender service users were treated with respect and in accordance with their rights under the EqA and to provide a service that promoted equal opportunities).

Impact for employers

The EAT made it clear in Mackereth that, following the EAT’s earlier decision in Forstater, there is now a low threshold for a belief to be protected under the EqA. Offensive and shocking beliefs can be protected, as long as they do not destroy the rights of others.

What is less clear for employers is how to tread the now very fine line between an employee holding a belief and the way in which that employee expresses or manifests that belief.  The ET acknowledged in Forstater that, where a belief is protected, then straightforward statements of that belief must also be protected.  It also allowed Ms Forstater a certain freedom in how her belief could be legitimately expressed (satirising, for example, can be protected to some degree).  However, Mackereth shows that employers still have the right to restrict the manifestation of a protected belief in the workplace where doing so is necessary, proportionate and in pursuit of a legitimate aim.

Both of these cases highlight just how fact-sensitive and potentially complex these issues are for employers.

What does the future hold?

It is unlikely that this will be the last we will hear on these issues.  Forstater was only a first instance decision, and it is not yet clear whether CGD will appeal.  Dr Mackereth has indicated that he intends to appeal.  We will keep you updated.

This update is for general purposes and guidance only and does not constitute legal or professional advice. You should seek legal advice before relying on its content. This update relates to the prevailing circumstances at the date of its original publication and may not have been updated to reflect subsequent developments. If you have general queries about our updates, please email: mailinglists@greenwoods.co.uk




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      By completing and submitting this form, you consent to Greenwoods Legal LLP processing your personal data to provide you with the email update services you have selected and any other materials and information about our services that Greenwoods Legal LLP reasonably believes will be of interest to you. You are free to withdraw your consent at any time by emailing mailinglists@greenwoods.co.uk