There have been three recent high-profile decisions involving claimants who allege they had been discriminated against, harassed and victimised because of their ‘gender critical beliefs’ (i.e. a belief that biological sex is immutable and cannot be changed):

• Maya Forstater (MF) v Centre for Global Development (CGD) and others - MF was engaged as a writer, researcher, advisor by CGD. During the period of her contract, MF expressed her gender-critical beliefs on Twitter and in the workplace whilst engaged in debates about gender identity issues. CGD’s decision not to renew her Visiting Fellowship contract and/or offer her an employment contract, MF claimed, was less favourable treatment because of her beliefs.
• David Mackereth (DM) v Department of Work and Pensions (DWP) and another - DM was recruited as a Health and Disabilities Assessor to assess individuals for disability-related benefits. DWP required him to refer to clients using the pronoun of their choice, which he refused to do as a consequence of his gender-critical beliefs (and his lack of belief in transgenderism). DWP asked DM to clarify his position but before further action was taken, he resigned.
• Alison Bailey (AB) v Stonewall and others – AB is a criminal barrister at Garden Court Chambers. AB was involved in setting up the LGB Alliance in October 2019. Her tweets about this led to a number of complaints being made to Garden Court about the incompatibility of her gender-critical views with trans-rights, including a complaint from Stonewall. In response, Garden Court publicly stated on Twitter (in a “response tweet”) that they were investigating the complaints and went on to uphold them.

When does a belief qualify for protection under the Equality Act 2010?

The Employment Appeal Tribunal’s (EAT) June 2021 judgment in the MF case sets out that her gender critical beliefs did qualify for protection under the Equality Act 2010 and that the threshold for protection is low as to qualify it need only be established that ‘it does not have the effect of destroying the rights of others’.

MF’s case was then referred back to the Employment Tribunal (ET) to determine the merits of her claims and the ET’s judgment regarding discrimination, harassment and victimisation was handed down on 30 June 2022 (see below).

In the DM case, the EAT found that DM’s gender critical beliefs (and his lack of belief in transgenderism) were protected and overturned the ET’s earlier decision to the contrary.

In the AB case, the parties agreed that AB’s gender-critical beliefs were protected. However, the ET also held that AB’s belief that the ‘gender theory’ advocated by Stonewall (essentially, that trans-women are women), is severely detrimental to women (including that it denies them female-only spaces) and to lesbians (in that it labels them as bigoted for being same-sex attracted), was also protected.

Less favourable treatment

The ET upheld MF’s complaints that CGD’s decisions not to renew her Visiting Fellowship contract and/or offer her an employment contract amounted to direct discrimination, on the basis that:

1. It was clear that the decisions were made because of her protected belief and also because she had expressed that belief on Twitter and in the workplace whilst engaged in debates about gender identity issues
2. MF had expressed her beliefs in a legitimate way
3. MF’s conduct, when looked at ‘as a whole’, was not objectively offensive, objectionable or unreasonable – for example, she was respectful of those who held opposing views, agreed to modify her behaviour, added a disclaimer to her Twitter account, and made it clear that she would respect someone's choice of pronouns, and
4. CGD’s response to MF’s conduct was problematic. CGD did not have a clear policy about workplace conduct or social media use to refer to and decisions were made on an ad hoc and subjective basis.

In the DM case, the ET had found that DM’s belief was not protected but the EAT overturned this part of the judgment finding that gender critical beliefs could be protected under the Equality Act 2010. However, the ET and EAT found that the action taken by DWP in response to DM’s refusal to use transgender service-users' chosen pronouns (in circumstances where the individuals may be vulnerable) did not amount to direct discrimination on the basis that:

1. DM was not treated less favourably either at all or in the way alleged (for example, DWP did not pressurise him to renounce his beliefs but merely clarify his position, and DWP did not dismiss him)
2. DM’s beliefs were not the reason for DWPs actions; the real reason was because they wanted to treat all service users in the manner of their choosing
3. DM accepted in his evidence that “it was only right” DWP sought to address these issues with him
4. Any other Health and Disabilities Assessor who was not prepared to refer to service users in the manner of DWP’s choosing would have been treated in the same way as DM.

DM has indicated to the media that he intends to appeal this element of the EAT’s decision.

In the AB case, the ET upheld AB’s complaints that found that Garden Court’s actions (in making the “response tweet” and their subsequent decision to uphold the complaints made against AB about the views she had expressed on Twitter) amounted to direct discrimination because of her protected beliefs on the basis that:-

1. the “material fact operating on their decision to send a response tweet was the attack on Garden Court for its association with someone who expressed views contrary to theirs, that is, because the claimant had expressed a view in the sex versus gender debate. The attack could not be dissociated from her views. The Heads [of Chambers] knew this, but did not pause to consider a neutral approach;”
2. AB’s protected beliefs “significantly influenced” the investigation and the conclusion that two of her tweets were likely to breach the Bar Standards Board Code and core duties.

Conflicting beliefs

The EAT in the Forstater case stressed that the finding that gender critical beliefs are protected under the Equality Act 2010 does not come at cost to or the removal of legal rights and protections from those who hold opposing gender identity beliefs.  They remain equally protected. The EAT also made clear that its judgment does not ‘grant permission’ for those who hold gender critical beliefs to mis-gender with impunity.

In the employee relations context, although workers with gender-critical beliefs are protected, that protection sits equally alongside protection for transgender people. However, whether or not conduct in a given situation amounts to harassment or discrimination within the meaning of the Equality Act 2010 will depend on the specific facts of each individual case and in particular, what was in the mind of the employer when doing the act complained of.

How Capsticks can help

These judgments demonstrate how difficult it is to balance the sometimes conflicting rights of not only employees, but also service users and members of the public at large. These cases, and the introduction of the Equality and Human Rights Commission’s guidance on the provision of single sex services, highlight that this is a developing area of legal and social debate, which employers and organisations need to tread with care.

Capsticks supports employers in the context of equality, diversity and inclusivity through drafting policies, codes of conduct and delivering training to employees at all levels. If you would like access to advice, training or need further guidance on equality, diversity and inclusion in the workplace (either generally or in relation to a specific case) please contact Nicky Green, Alistair Kernohan or Chloe Edwards.