Tribunal rulings show need for caution over gender-critical views

CIPD Voice On… gender critical guidance, by Ben Willmott, CIPD’s Head of Public Policy. 

Organisations should review their policies and guidelines for employees and managers in light of the latest case law.

Two recent employment tribunal rulings have made clear that employers cannot discriminate against those who express gender-critical views, such as stating that transgender women cannot change their biological sex.

In the case of Bailey vs Stonewall and Garden Court Chambers, the tribunal ruled that Garden Court had discriminated against her after they tweeted that complaints made against Bailey for her gender-critical views would be investigated under a complaints procedure.

The complaints against Allison Bailey, a barrister, were made after she tweeted opposing trans rights campaigns. The tribunal heard that her gender critical belief, expressed in the tweet, was that Stonewall was complicit in supporting a campaign of harassment, intimidation, and threats made to anyone who questioned its trans self-ID ideology, especially lesbians and feminists.

The tribunal held that the gender-critical belief Bailey had expressed was a belief protected under the Equality Act and that Garden Court’s tweet announcing an investigation against her was discriminatory.

This ruling followed the resolution of the long-running and high-profile case involving tax expert Maya Forstater at a hearing earlier in July 2022, where another tribunal held that Forstater had been discriminated against because of her gender-critical beliefs. See Box below.

The Forstater case first hit the headlines in 2019 when Maya Forstater lost a widely reported Employment Tribunal against her employer which did not renew her contract after she posted a series of tweets expressing her view that transgender women could not change their biological sex. The tweets were made as part of the debate about changes being proposed at the time to the Gender Recognition Act to make it easier for trans people to self-identify.

The 2019 Employment Tribunal hearing was held to establish whether her beliefs qualified as a protected belief under the Equality Act 2010, and resulted in the tribunal judge deciding that such views were not "worthy of respect in a democratic society”.

Forstater successfully appealed against this ruling in 2021 at an Employment Appeal Tribunal (EAT) hearing where another judge found "gender-critical" views were protected under the Equality Act 2010. Mr Justice Choudhury, the president of the EAT tribunal, found that while so-called gender critical views may be “profoundly offensive and even distressing to many others … they are beliefs that are and must be tolerated in a pluralist society”.  The ruling also made clear that its decision “does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity.”

The EAT decision paved the way for the July 2022 Employment Tribunal which upheld Forstater's case, concluding that she had suffered direct discrimination on the basis of her gender critical belief.

Legal grey areas remain

While these rulings do show that gender-critical beliefs are protected under the Equality Act, and employers must not discriminate against those that hold them, there are still grey areas.

The chair of the Equality and Human Rights Commission, Baroness Kishwer Falkner, commenting on the Forstater EAT ruling when it was published said: “Some may see the beliefs of others as questionable or controversial but people must be free to hold them. There is a difference between holding a belief and how it is expressed. We are all responsible for what we say and do. As the Appeal tribunal made clear in its judgment, this decision does not mean that actions or comments based on such beliefs are free from consequences or should be left unchallenged.”

This suggests strongly that someone expressing a gender-critical belief may still be found to be acting in a discriminatory way through the way they articulate this, for example misgendering someone.

The origins of both cases lie with the debate over whether it should be easier for trans people to have their identity legally recognised and whether there should be reforms to legislation on gender recognition.

Gender Recognition Act 2004 - Wikipedia

Implications for employers

Employers should review their policies on equality, diversity, and inclusion in light of these rulings and ensure they have effective practices in place for managing and preventing conflict, bullying and harassment. Organisations should set clear expectations of what is acceptable and unacceptable language and behaviour through their policies, with examples, and provide guidance and support to managers on how to prevent and manage conflict both informally and formally where this is necessary.  Employers should also ensure people feel able to report conflict and have confidence that complaints will be taken seriously and investigated consistently.

Trans employees have the right to be respected and treated equally and there must be a zero-tolerance approach to any form of discrimination against them.  Equally, employers must ensure that any form of bullying or harassment towards people with gender-critical beliefs is not tolerated. It is likely that there will continue to be conflict around this issue and organisations need to update their policies and approach accordingly. 

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