Fri 22 Jul 2022

Claimant discriminated against over gender critical views

The case of Maya Forstater v CGD Europe and others has received a significant amount of publicity, not least because JK Rowling is a supporter of the claimant.

The case surrounds "gender critical" beliefs.  At a preliminary hearing in 2019 an employment tribunal held that the claimant's beliefs were not protected under the Equality Act 2010 ("the Act") as they were "not worthy of respect in a democratic society". However, last year the Employment Appeal Tribunal ("EAT") overturned that judgment when the claimant appealed. The EAT described the claimant's belief, which was worthy of protection under the Act, as being that "biological sex is real, important, immutable and not to be conflated with gender identity. She considers 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'." 

The case then returned to the employment tribunal to consider whether the claimant had been discriminated against by the respondents. The respondents had decided not to offer the claimant an employment contract nor renew her unpaid visiting fellowship after she expressed her views, some of which were offensive to the trans community, on Twitter. The respondent also removed the claimant's profile from their website. The employment tribunal found the claimant had suffered both direct discrimination and victimisation, in consequence of these actions. She made some other related claims that were not upheld. 

Although this case demonstrates that employees are entitled to hold gender critical beliefs, that does not mean (as the EAT pointed out in the earlier appeal) that individuals holding these beliefs can "misgender trans persons with impunity". How the employee manifests their belief will be critical to how an employer should react. For example, if someone with gender critical views deliberately upset other employees then employers will not be expected to tolerate that. A fair balance needs to be struck between freedom of speech and ensuring the workplace is a safe environment free from discrimination and harassment.  It will not always be easy to get that balance right. Employers should ensure that policies are clear and training is provided to staff. It should be made clear that while employees will not be treated unfairly because of their beliefs, if those beliefs are manifested in a way that are offensive or amount to harassment then disciplinary action may be taken.

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