‘Gender critical’ beliefs are a form of protected speech, EAT rules

But judge says ruling on Maya Forstater case does not mean employers could not provide a ‘safe environment’ for trans employees

Gender-critical beliefs – such as the belief that trans women are not women – are a form of speech protected under the Equality Act, the Employment Appeal Tribunal (EAT) has said, in a ruling that could have implications for employers looking to police speech in the workplace.

The judgment comes as a victory for Maya Forstater, who is arguing the decision by the Centre for Global Development (CGD) not to renew her contract after she expressed gender-critical views on social media and the organisation's internal Slack messaging platform was discriminatory.

In his ruling, EAT judge Mr Justice Choudhury, said Forstater’s belief that sex is immutable was “widely shared” and “did not seek to destroy the rights of trans persons”, and therefore should not be excluded as a protected philosophical belief.

He said the initial 2019 employment tribunal erred when it ruled that Forstater’s views were “not worthy of respect in a democratic society”.

However, the ruling did not comment on whether Forstater was discriminated against because of these protected beliefs. The case will go back to an employment tribunal for this to be decided.

Choudhury also stressed the judgment did not express any view of the merits of either side of the transgender debate, and did not mean people with gender-critical beliefs could “misgender trans persons with impunity” or that employers would not be able to “provide a safe environment for trans persons”.

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“Employers would continue to be liable [...] for acts of harassment and discrimination against trans persons committed in the course of employment,” he said.

“The claimant [Forstater], like everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else,” Choudhury added.

The judgment means individuals who hold gender-critical beliefs have the same legal protection as those who hold religious beliefs, environmental beliefs or practice ‘ethical veganism’, said Monica Kurnatowska, employment partner at Baker McKenzie, and are entitled to protection from discrimination because of these beliefs.

“The decision is an important one and strikes a vital balance on freedom of speech in the workplace,” she said.

But, Kurnatowska added, employees are still entitled to protection from harassment, and going forward an employment tribunal will likely look at how Forstater manifested her beliefs in the workplace.

“While there may not be a right not to be offended, employees are entitled to be protected from harassment,” said Kurnatowska. “Employers will be watching closely for any guidance on how to handle employee conflict fairly and lawfully, while respecting the rights of all involved.”

Anne Pritam, partner and employment lawyer at Stephenson Harwood, also warned employers that conversations sparked by the case itself could lead to potential problems in the workplace. “This pivotal judgment may well spark heated debates in the workplace,” she said. “It’s a complex issue where strongly held beliefs can turn the debate toxic.”

Pritam added that while “respectful and measured discussion” around the transgender debate might be unproblematic, any offensive remarks made against someone holding gender-critical views could amount to harassment, for which the employer could be liable.

“In light of this ruling, it would be prudent for employers to emphasise to their workforce the importance of tolerance and mutual respect in the workplace, promote diversity and inclusion practices and educate their workforce on gender identities and surrounding issues,” said Pritam.

She also advised employers to review and refresh relevant workplace policies, providing training and appropriate education programmes.

In a statement, Maya Forstater said the EAT’s ruling was a “win for millions of people, and for democracy”. “I am proud to have been the person who got these legal rights recognised, and grateful to everyone who spoke up and supported me,” she said.

In a statement, Amanda Glassman, CEO of CGD Europe and executive vice president of CGD, said the EAT’s decision was “disappointing and surprising”.

“We believe [the employment tribunal] got it right when [it] found this type of offensive speech causes harm to trans people, and therefore could not be protected under the Equality Act.

“Today’s decision is a step backwards for inclusivity and equality for all. We’re currently considering the various paths forward with our lawyers,” said Glassman.