Gender Critical Beliefs And Discrimination In The Workplace

• Published date: 04 August 2022
• Subject Matter: Employment and HR, Contract of Employment, Discrimination, Disability & Sexual Harassment
• Law Firm: Lanyon Bowdler
• Author: Mr John Merry

The issue of gender critical beliefs is of course much in the news and proliferates across social media.

On 6 July 2022, in the case of Forstater v CGD Europe and others, an employment tribunal issued a decision which will help shape future debate on the scope of legitimate expression of beliefs, particularly beliefs about gender, in a work context.

The tribunal found that Ms Forstater had suffered direct discrimination when her employer declined to renew her contract because of her expression of gender critical beliefs - including a belief that sex is immutable and should not be conflated with gender identity, and that trans women are men - on Twitter and at work.

Background

Religion or belief is a protected characteristic under the Equality Act 2010, and it is direct discrimination to treat a person less favourably because of their religion or belief.

In some cases a respondent may argue that the reason for less favourable treatment is not the belief itself, but the way in which the claimant has manifested it.

There is distinction between:

1. Cases where the reason for less favourable treatment is the fact that the claimant holds and/or manifests a protected belief. This would amount to direct discrimination because of belief.

2. Cases where the reason for less favourable treatment is that the claimant had manifested that belief in some particular way to which objection could justifiably be taken. In these cases it is the objectionable manifestation of the belief, and not the belief itself, which is treated as the reason for the act complained of. However, if the consequences of the objectionable manifestation are not such as to justify the action taken against the employee, this cannot sensibly be treated as separate from an objection to the belief itself.

Facts

In November 2016, Ms Forstater was employed as a Visiting Fellow by CGD Europe on a one-year contract, and her contract was renewed in each of the following two years.

Ms Forstater believes that (i) a person's sex is a material reality that should not to be conflated with gender or gender identity, (ii) a person's sex is an immutable biological fact, not a feeling or an identity, and that a trans woman is not in reality a woman, and (iii) while a person can identify as another sex and ask other people to go along with it, and can change their legal sex under the Gender Recognition Act 2004 (GRA), this does not change their actual sex.

Ms Forstater engaged in debates on social media about...