What employers should be aware of as the gender debate evolves

In light of a recent EAT ruling on gender discrimination, Adam Penman outlines the implications for businesses around staff with ‘gender-critical’ beliefs 

In March 2019, Maya Forstater’s (pictured) contract in respect of a visiting fellowship was not renewed by her employer, the Centre for Global Development (CGD), following an internal investigation, because of a series of tweets she had posted which challenged the government’s proposals to reform the Gender Recognition Act.

Forstater, who had worked as a tax expert, had stated that transgender women could not change their biological sex and that, in effect, gender was binary and assigned birth sex was absolute. Forstater then brought a claim against CGD for discrimination on grounds of philosophical belief pursuant to section 10 of the Equality Act 2010 – the philosophical belief that sex is immutable and not to be conflated with gender identity. 

Forstater initially lost her employment tribunal claim primarily on the basis that her gender critical views were incompatible with human dignity and the fundamental rights of others and therefore did not qualify for protection under section 10. Such absolutist views, which could extend to referring to trans people by their assigned birth pronouns, the employment tribunal said, could violate the dignity of trans people. 

Forstater's appeal against the judgment of the employment tribunal was heard by the EAT on 27 and 28 April 2021 with the subsequent judgement delivered on 10 June 2021. Mr Justice Choudhury, hearing the appeal, stated that the employment tribunal had ‘erred in law’ when considering whether a belief was worthy of respect in a democratic society – a key criterion is assessing whether a belief qualified for protection under section 10.

The EAT did make it clear that the scope of its judgment was intended to be narrow, and not intended to undermine the trans community or their rights or to take a position on the gender debate. The appeal decision turned only on whether Forstater’s beliefs on the immutability of sex qualified as a philosophical belief and it was considered that such beliefs, although contentious and potentially offensive to some people, should be tolerated in a pluralist society.

Holding such beliefs is separate from acting on them and accordingly, gender critical views may be tolerated in workplaces. But, for example, intentionally or persistently misgendering trans colleagues at work would likely be harassment and misconduct which, subject in most cases to an appropriate investigation, may qualify for disciplinary action or even summary dismissal. 

Employers should remain cautious about taking action in respect of an employee who expresses potentially offensive gender critical views, particularly in a private capacity (albeit even on a public forum, such as a social media). Providing those views do not manifest into behaviours that could compromise the dignity of other employees or qualify as harassment or discrimination of trans people, of which employers remain vicariously liable in the workplace, those views ought, within reason, to be respected. 

It should be noted also that the EAT reiterated that gender identity beliefs are also worthy of respect in a democratic society and accordingly, employers should be mindful of other employees’ positions in relation to it.

As the gender debate evolves, it remains to be seen whether, in the future, such views would always be considered consistent with the principle that philosophical beliefs be worthy of respect in a democratic society.

Adam Penman is an employment lawyer in the London office of international law firm, McGuireWoods