What does the law say about gender critical beliefs in the workplace?

    Gender Critical Beliefs in the Workplace

    IN THIS ARTICLE

    Emerging case law is highlighting the current lack of consensus surrounding gender critical beliefs. AS with all philosophical views and beliefs, employers must act with care to ensure they are treating all workers fairly and are not discriminating against someone on the basis of their beliefs of philosophical views.

    The fact that an employer, or coworkers, do not share the same beliefs, provided that person’s words or actions do not amount to harassment or hate speech, cannot in itself justify lawful disciplinary action or dismissal. On the contrary, if action is taken against someone at work for simply having gender critical beliefs, the employer risks claims for unlawful discrimination.

    In this guide, we explain the latest position for employers: what is meant by gender critical beliefs, and what does the law says about this developing topic in the context of the workplace and employment rights? We also look at what appropriate steps can be taken by an employer when staff disagree over gender critical beliefs, and what best practice advice employers should follow ensure all workers’ are treated fairly and in accordance with their rights.

    What are gender critical beliefs?

    Gender critical beliefs refer to the viewpoint that someone’s sex is biological and immutable, and not to be conflated with their gender identity, whether they identify as a man or a woman. Under this belief system, there are only two sexes, male and female, with no spectrum or circumstances in which a person can change from one sex to another — the conclusion being, as a matter of biology, a trans person is still their natal sex. There is no possibility of any sex in between male and female, or that a person is neither male nor female.

    A person who holds gender critical beliefs essentially construes sex as a biological classification, rather than as a social construct, where statements such as “a woman means an adult human female” or “trans women are male” are used as statements of neutral fact, rather than expressions of antipathy towards trans people or being transphobic. It is also believed that conflating sex with self-identified gender poses a risk to women’s sex-based rights.

    Examples of the views that those who hold gender critical beliefs include that women have the right to access certain single sex spaces and to organise services on the basis of biological sex, such as women’s prisons or women’s refuse shelters for victims of domestic violence or rape, or that it is legitimate to exclude those who have been through male puberty from competing in women’s sport. They may also take issue with transinclusive language, such as using the phrase ‘people who menstruate’, or spelling women ‘womxn’, and may be opposed to any legal reform on gender recognition to allow those who identify as the opposite sex to change their birth certificate without surgery, hormones or a gender dysphoria diagnosis.

    What does the law say about gender critical beliefs?

    Under the Equality Act 2010, it is unlawful to treat someone unfairly at work because of their ‘religion or belief’, including any philosophical beliefs that they may hold. The other protected characteristics cited under the 2010 Act include age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, sex, sexual orientation, and race.

    The phrase ‘belief’ is defined as ‘any religious or philosophical belief’, or ‘lack of belief’, although there is no further statutory guidance here. However, in the case of Grainger Plc vs Nicholson [2010] IRLR 4, regarding the question of an employee’s conviction about manmade climate change, the Employment Appeal Tribunal (EAT) set out five criteria that can be applied to any philosophical belief system to see whether it is capable of protection:

    • The belief has to be genuinely held by the individual
    • It must be a belief, and not merely a viewpoint or opinion based on the state of information currently available
    • It must be a belief as to both a weighty and substantial aspect of human life and behaviour
    • It must attain a certain level of cogency, seriousness, cohesion and importance
    • It must be worthy of respect within a democratic society, and it must not be incompatible with human dignity, nor conflict with the fundamental rights of others.

    These five Grainger criteria are reflected in the Employment Statutory Code of Practice issued by the Equality and Human Rights Commission, and remain the appropriate criterion by which to assess whether a philosophical belief qualifies for statutory protection. More specifically, these criteria were applied in a more recent landmark judgment, in the case of Forstater vs Center for Global Development, in which the EAT ruled that the appellant’s gender critical beliefs were a philosophical belief capable of protection.

    Case law on gender critical beliefs & the workplace

    In the case of Forstater, on its facts, the appellant’s fellowship was not renewed after complaints were made by colleagues over posts on her personal Twitter account expressing her view that transgender women could not change their biological sex, and opposing the proposed amendments to the Gender Recognition Act (GRA) 2004 which would have made legal recognition of self-identified gender easier. These tweets included the following:

    “I share the concerns of @fairplaywomen that radically expanding the legal definition of ‘women’ so that it can include both males and females makes it a meaningless concept, and will undermine women’s rights and protection for vulnerable women and girls… Everyone’s equality and safety should be protected, but women and girls lose out on privacy, safety and fairness if males are allowed into changing rooms, dormitories, prisons, sports teams.”

    “…if people find the basic biological truths that “women are adult human females” or “trans-women are male” offensive, then they will be offended. Of course, in social situations I would treat any trans-woman as an honorary female, and use whatever pronouns etc… I wouldn’t try to hurt anyone’s feelings, but I don’t think people should be compelled to play along with literal delusions like “transwomen are women”.

    The preliminary issue of whether or not these gender critical views amounted to a philosophical belief capable of statutory protection was decided against Ms Forstater at first instance, with the tribunal finding that her views were not worthy of respect in a democratic society and did not have the protected characteristic of philosophical belief. However, after appealing to the EAT, the tribunal was found to have erred in law. The gender critical beliefs held by Ms Forstater, and which it was acknowledged are widely shared in society, did satisfy the fifth Grainger criterion and did not “seek to destroy the rights of trans persons”.

    The EAT’s judgment in the case of Forstater does not mean that the panel was intending to express any view on the merits as to the different sides of the transgender debate, and should not be read as providing support for, or diminishing, the views of either side. The finding made on appeal simply means, certainly as the law currently stands, that gender critical beliefs are legitimate perspectives capable of statutory protection under the 2010 Act.

    The matter was subsequently referred back to the tribunal for a decision on its facts, to determine whether the treatment about which Ms Forstater complained of was because of or related to her beliefs. With judgment handed down in July 2022, the evidence was said to show a clear causal connection between Ms Forstater’s professed beliefs and her unfair treatment, where the decision not to renew her fellowship was held to be discriminatory.

    Employers obligations

    Based on the EAT’s decision in Forstater, if a member of staff is able to demonstrate genuinely and strongly held gender critical beliefs, and they are treated unfairly at work because of these beliefs, this is likely to be classed as unlawful. However, the fact that gender critical beliefs can amount to a philosophical belief capable of statutory protection does not mean that employers should now ignore or downplay the difficulties faced by trans persons in the workplace, where their identity and sense of self can often come under challenge and attack.

    Equally, the decision in Fortstater does not mean that those with gender critical beliefs can misgender trans persons with impunity, that is to say referring to them by non-preferred pronouns or by a different gender to that in which they identify. Trans persons still have the protections against discrimination and harassment conferred by the Equality Act 2010. This means that employers will continue to be liable for any acts of harassment and discrimination against trans persons committed in the course of employment, subject to any defence of having taken all reasonable steps to prevent this conduct from taking place.

    Still, there is a difference between stopping staff from harassing a trans person by misgendering them — where such conduct could potentially amount to harassment of, or discrimination against, a trans person in relation to protected characteristics like gender reassignment — and asking an employee to refrain from expressing their beliefs in general.

    It is inevitable, given the controversial nature of gender critical beliefs, that these views may be construed as transphobic, but there is no fundamental right not to be offended. As stated by the EAT, gender critical beliefs may be profoundly offensive and even distressing to others, but these are beliefs that are and must be tolerated in a pluralist society. The person with gender critical beliefs is as entitled to hold their beliefs as a trans gender person is to theirs, where an employer simply cannot compel people to be polite or kind in every single situation. Very often, these views are not grounded in hatred, bigotry, prejudice or hostility, but are based on legitimately different value judgments, reasoning and analysis, without unlawful conduct.

    What should you do when staff disagree over gender critical beliefs?

    Given that gender critical beliefs engage a matter of ongoing scientific, political and public debate, it would be unwise for employers to express any view as to the merits of either side of the transgender debate. If anything, this is only likely to add to any tensions at work when staff disagree over gender critical beliefs. However, there are various steps that can be taken to help minimise conflict in the workplace that can arise over opposing views, including:

    The provision of workplace training

    Training on discrimination, harassment and victimisation, from the rights of gender variant people to the protections afforded to those with gender critical beliefs, should be rolled out across your workforce. It is important for those responsible for making management decisions to be adequately trained in these areas of risk, and for staff to fully understand the impact and consequences of their own conduct.

    The provision of a dignity at work policy

    This can provide a useful platform to set out the stance taken by your business in relation to different types of discrimination, harassment and victimisation, providing specific examples of protected characteristics such as philosophical beliefs and gender reassignment. In this way, you can help to educate your staff, creating a diverse and inclusive culture where different opinions are tolerated.

    The provision of a fair grievance and disciplinary procedure

    It is important that staff know that if they make a complaint in relation to gender critical beliefs, or a complaint is made against them, that a fair procedure will be followed, even if their beliefs are not personally shared. The question of philosophical beliefs is a complex area of employment law, where line managers and HR personnel must be sensitive to those who hold opposing views. They must also treat differing views consistently, although knowing where to draw the line can be a challenge for employers, as individual cases will be dependent on the facts.

    Before taking any action against an employee, including disciplinary or dismissal action, it is always best to seek expert legal advice, otherwise risk a claim for unlawful discrimination. Discrimination in the workplace can also have other serious consequences, including reduced employee engagement, increased absenteeism and high staff turnover rates. It is therefore crucial that your workplace culture is actively inclusive, cultivating a community of mutual respect and understanding through policies and behaviours, where even controversial beliefs, provided they do not amount to harassment or hate speech, are tolerated.

    Gender critical beliefs in the workplace FAQs

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    Legal disclaimer

    The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

    Author

    Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.

    Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.

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