Protection of gender-critical beliefs: balancing inclusivity 

August, 2022 - Shoosmiths LLP

A year after Ms Maya Forstater succeeded in establishing in the Employment Appeal Tribunal that gender-critical beliefs are a protected philosophical belief under the Equality Act 2010, she has won two of her claims for direct discrimination and one claim for victimisation. Employers need to tread very carefully both to balance individual employees' rights to hold sometimes conflicting protected beliefs and to foster a culture that is truly inclusive.


A year after Ms Maya Forstater succeeded in establishing in the Employment Appeal Tribunal (EAT) that gender-critical beliefs are a protected philosophical belief under the Equality Act 2010 (2010 Act), she has won two of her claims for direct discrimination and one claim for victimisation (Forstater v CGD Europe and others ET/22200909/2019). Ms Forstater claimed that CGD Europe had discriminated against her due to her gender-critical belief that biological sex is real, important, immutable and not to be conflated with gender identity, and that statements such as “woman means adult human female” or “trans women are male” are statements of neutral fact and are not expressions of antipathy towards trans people or “transphobic”.


There is a polarisation of views on the right of transgender people to be classified on the basis of their gender identity rather than sex, and women’s rights groups concerned about the potential adverse impact of this on the safety of women and girls. Forstater has fuelled an already intense societal debate over this conflict of rights and employers need to tread very carefully both to balance individual employees’ rights to hold sometimes conflicting protected beliefs and to foster a culture that is truly inclusive.


Gender-critical belief

Ms Forstater is a researcher and campaigner with an active social media presence. She was a visiting fellow on a number of consultancy agreements for CGD, a not-for-profit think tank. Discussions about broadening the work that Ms Forstater did for CGD, including an employed role, coincided with the timings of the government’s consultation on its proposed reforms to broaden transgender rights under the Gender Recognition Act 2004.


Ms Forstater began tweeting on her personal Twitter account her views on sex and gender. Her comments included referencing a person who considered themselves to be gender fluid as a “part-time cross-dresser”, that “a man’s internal feeling that he is a woman has no basis in material reality” and describing self-identification as a woman as a “feeling in their head”. She had also left a gender-critical campaign booklet on a hot desk at the end of the day and posted on Twitter a campaign video with ominous music and threatening imagery. Staff at CGD expressed concern that Ms Forstater was expressing “transphobic” views on Twitter and that her profile listed her as a visiting fellow and mentioned CGD’s Twitter account.


Ms Forstater agreed to tweet less on the topic on her main Twitter account and agreed not to initiate discussions with colleagues about sex and gender issues. In her note in support of the renewal of her visiting fellowship, Ms Forstater stated that “The issue at hand is my belief that women exist, as a material reality based on biological sex and that human rights protections for women and girls on the basis of sex need to continue”. CGD did not renew Ms Forstater’s visiting fellowship when her last contract ended and did not offer her a previously proposed employed role.


As a preliminary issue, the EAT held that gender-critical beliefs are protected philosophical beliefs under the 2010 Act (www.practicallaw.com/w-032-0355; see Briefing “Philosophical belief: what’s protected?”). The case was then remitted to the tribunal to determine all of the other issues on liability.


The tribunal’s conclusions

On the issue of whether Ms Forstater was protected as an employee under the 2010 Act, the tribunal concluded that her contract to do work personally for CGD meant that she was. The tribunal also held that all of the detriments she had suffered were part of a course of conduct over a period of time, and that all of her claims were brought within the time limit.


On the main claims, the tribunal held that CGD had directly discriminated against Ms Forstater by deciding not to renew her visiting fellowship and not to offer her employment as a senior fellow, and had subjected her to victimisation by removing her profile from its website.


The tribunal’s reasoning


In line with guidance issued by the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary, the tribunal decided that it is not necessary in every case to construct a hypothetical comparator and moved directly to ask whether the reason for CGD’s treatment of Ms Forstater was because of her gender-critical belief ([2003] UKHL 11).


As Ms Forstater’s tweets were a substantial part of the reason why she was not offered employment, the tribunal then considered whether Ms Forstater had manifested her belief in such a way that CGD could reasonably object, as in Page v NHS Trust Development Authority, or in an inappropriate manner, as in Wasteney v East London NHS Foundation Trust ([2021] EWCA Civ 255, www.practicallaw.com/w-030-7150; UKEAT/0157/15) (see box “Manifestation of belief”). If CGD could justifiably have objected, it might have successfully argued that the reason for not offering Ms Forstater employment was not because of her gender-critical belief but because her expressions of belief were objectively unreasonable or offensive.


However, many of the tweets were mere assertions of Ms Forstater’s belief, for example that gender identity refers to “a feeling in their head”, which the tribunal acknowledged was protected. Other manifestations of her belief, including the book and the video, or mild examples of mockery of an opposing view, were not objectively unreasonable. Although one member of the tribunal had found the statement “part-time cross-dresser” to be objectively inappropriate or objectionable, the tribunal unanimously concluded that even if Ms Forstater had expressed her belief in an objectively offensive way once, that was not sufficient to justify CGD’s detrimental actions against her.


In relation to the decision not to renew the visiting fellowship, the tribunal found that the president of CGD, Mr Masood Ahmed, had been influenced by opposition to Ms Forstater’s belief from senior management. On the removal of her profile from the website, there was inadequate explanation for this action.


Ms Forstater’s alternative complaints of indirect discrimination and harassment either did not arise for decision or were not pursued at the hearing.


Lessons for employers

While Ms Forstater’s claim was about the recognition of sex-based beliefs, it is essentially a case that raises questions about how employers can foster a workplace environment which is both sensitive and respectful of the rights and beliefs of individual colleagues, and truly inclusive.


Proactivity is key for employers. There was no social media policy in place when Ms Forstater was tweeting. This is a reminder to employers of the importance of having workplace policies to clearly set out expected and acceptable standards of behaviour (see feature article “The challenges of social media: dismissals and disciplinary action” and Briefing “Employees and social media: when can employers take action?”). A policy statement that sets out an employer’s commitment to, and clear objectives for, workplace equality, diversity and inclusion, which is supported by policies in relation to code of conduct, diversity and inclusion, and bullying and harassment, are key first steps for employers.


Policies can only be effective if they are combined with knowledge and awareness training to embed workplace behaviours where differences in values are respected and where people can bring their authentic self to work. To this end, one-off online tick-box e-learning training sessions will be an insufficient measure, while training in small groups where discussion is encouraged and stimulated will demonstrate the employer’s commitment to its inclusivity objectives. Employee networks for those with a shared identity, such as women and the LGBTQ+ community, can provide a safe place to discuss sensitive issues and also a powerful platform for the employee voice when combined with the active engagement of management.


Employers will need to face the challenge of balancing rights and beliefs when faced with workplace disputes that involve high emotional stakes where one employee’s belief conflicts with that of another. If, in the expression of any rights or beliefs, there is potential harassment or discrimination against another, employers must investigate and take any appropriate disciplinary action. However, employers must not lose sight of taking a balanced approach. For instance, they must not react to serious allegations of bullying in a knee-jerk manner by immediately suspending an employee without having considered carefully if suspension is necessary; to do so otherwise might amount to a breach of trust and confidence (see Briefing “Suspending employees: avoiding a knee-jerk reaction”).


Forstater has highlighted the potentially fine line between merely expressing a belief, which must be respected, and expressing that belief in a way that makes it objectionably unreasonable or offensive. Employers will need to approach these conflicts very carefully.


This article first appeared in the August 2022 issue of Practical Law Magazine.


 



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