By Ben Wilmott, Head of Public Policy, CIPD. 

Last week’s ruling that ‘gender critical’ views are a protected philosophical belief under the Equality Act is the latest development in the debate about transgender rights and has important implications for the workplace. 

The ruling by the Employment Appeals Tribunal (EAT), supported the position of researcher Maya Forstater, who lost her job at a thinktank after tweeting that transgender women could not change their biological sex.  

The EAT decision means Forstater’s belief, that biological sex is real and not to be conflated with identity and that it is a statement of fact that women are adult human females and trans women are males, is protected under the Equality Act. 

Forstater’s successful appeal against the original tribunal ruling that her views were ‘not worthy of respect in a democratic society’, was supported by the Equality and Human Rights Commission. 

Its chair, Baroness Kishwer Falkner, welcomed the EAT ruling, commenting: ‘Some may see the beliefs of others as questionable or controversial, but people must be free to hold them. This is why this case is so important.’ 

Actions or comments based on gender critical beliefs not ‘free from consequences’ 

However, she went on to say: ‘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 judgement, this decision does not mean that actions or comments based on such beliefs are free from consequences or should be left unchallenged.’ 

This point was reinforced by the EAT’s written judgement, which said its decision ‘does not mean that those with gender-critical beliefs can “misgender” trans persons with impunity.’ 

Tribunal case sparked by debate over legal recognition for trans people 

The origins of the case lie with the debate over whether it should be easier for trans people to get their identity legally recognised, which was the basis for Forstater’s original comments in 2019. At the time there was a consultation on the Gender Recognition Act 2004 (GRA), which was considering options to make it easier for trans people to self-identify. 

Those in favour of changes to the law to make it easier to self-identify, such as Stonewall, argue that reform of the GRA should mean that trans people should require no medical diagnosis or presentation of evidence to get their identity legally recognised. They also believe all trans people, including 16 and 17-year-olds, should have the right to self-determination, through a much simpler and more streamlined administrative process. 

However, others argue that such changes to the GRA could be negative and undermine women's rights and safety. Professor Rosa Freedman and Professor Rosemary Auchmuty argued that 'self-identification will allow anyone to access women’s spaces at any time, having self-proclaimed that they are a woman.' 

In September 2020, the Government published its long- delayed response to the consultation which concluded that the law, and processes, set out within the GRA are correct and find the right balance when it comes to the available support for those who wish to change their legal sex. 

Consequently, in order to obtain a Gender Recognition Certificate, transgender people have to: 

• be diagnosed with ‘gender dysphoria’, by two medical reports (from two different doctors)  
• provide evidence that they lived in their acquired gender for at least two years 
• pass an assessment from a Gender Recognition panel, with each application assessed by one judge and one medical professional  

In October 2020 the Women and Equalities Committee launched a new inquiry into Gender Recognition Act reform with a view to making further recommendations on improving the process for gender recognition. 

Implications for employers 

All of these developments come at a time when evidence shows that trans employees experience lower levels of wellbeing and psychological safety in the workplace than other colleagues and are more likely to experience conflict at work.  

This highlights the importance of all employers having clear policies on managing and preventing conflict, bullying and harassment. The EAT ruling on the Maya Forstater case makes clear there is a distinction between holding a protected belief and the comments and actions that might arise from such beliefs. Policies should set clear expectations of what is acceptable and unacceptable language and behaviour, with practical examples, and provide robust guidance to managers on how to report and deal with incidences of conflict. Employers should also ensure people feel able to report conflict and have confidence that their complaints will be investigated seriously. 

Trans employees have fundamental rights to be respected and treated equally and there must be a zero-tolerance approach to any form of discrimination against them. Employers should seek to build a peer support and allyship network that LGBT+ employees can approach as the first point of contact when they have faced bullying and harassment. Members of this network should have appropriate training to be able to signpost to sources of internal and external support. 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 review their policies and approach accordingly.  

This is a complex area of law and requires employers to balance the rights of different groups within their workplace to ensure all employees are treated fairly and without discrimination if they want to create genuinely inclusive workplaces.