Gender critical theory, the idea that sex should not be conflated with gender identity, is now protected as a philosophical belief under s10 of the Equality Act. The implications this has for the workplace resides on whether beliefs that can be considered discriminatory against specific groups, can be legally protected as a “characteristic”.
Back in 2019, Maya Forstater claims she was unfairly discriminated against by her workplace, the thinktank Center for Global Development (CGD), over tweets she made in response to the proposed reforms to the Gender Recognition Act. Employees at the CGD complained that her tweets were “transphobic”, and her contract was not renewed.
The first Tribunal ruled that gender-critical beliefs do not satisfy the Grainger criterion, as these beliefs do not respect human dignity or the “enormous pain that can be caused by misgendering” and are therefore excluded from protection.
Despite this, it was allowed to be appealed to the EAT, believing that the first Tribunal had made an error in its application of Grainger. The criteria will generally protect all philosophical beliefs unless they cross a line into something akin to fascism. With this, the EAT judged that whilst Ms Forstater holds views that may be considered offensive to some, they would not be excluded from protection under the Equality Act. According to the Employment Appeal Tribunal’s final judgement, beliefs that honestly express personal beliefs without actively inciting hate or harassment must be “worthy of respect in a democratic society”.
However, it stressed that transgender people still have equal rights in the workplace, as the ruling has not “expressed any view on the merits of either side of the transgender debate”. Anything crossing the line into hate speech can be justifiably restricted under Article 9(2) or Article 10(2) of the European Convention on Human Rights.
The difference between holding a belief and expressing it raises several questions as to whether the specific philosophy is dangerous to specific groups. The EAT judgement maintained that intentionally misgendering someone with the intention to cause offence is still prohibited and it is not giving those with gender-critical beliefs impunity.
Therefore, whilst this may be seen as a lack of progress for those campaigning for better workplace protection for trans people, their rights are still equally upheld under the Equality Act. For an employer, finding the right balance between two opposing rights such as these will be the real a challenge.
For any assistance with this issue or any employment-related matter, please contact our Head of Employment Ilinca Mardarescu