In the era of social justice, issues of gender identity stir up heated debate between those pushing for greater acceptance and those refusing to budge from biological views of sex.
As an emotive topic with the potential to cause real offence, when the discussion seeps into the workplace, it can be difficult for employers to know how to act. What it comes down to is a delicate balancing act between freedom of speech and respect for a person’s identity, and this can be a difficult line to tread.
Chances are that within your own workplace, you will have people that represent both sides of the argument, so what do you do when somebody who is adamant that sex is a biological fact airs this potentially offensive opinion openly on a public platform? There are a range of responses employers may choose to take, all of which come with their own risks, but is there a correct answer?
What the law says
There are nine grounds of discrimination that are outlawed by the Equality Act (EqA) 2010. These ‘protected characteristics’ – aspects of a person’s identity that make them who they are – include things like sex, age, disability, and race. These characteristics are fairly unambiguous in meaning; however, the law also protects people from discrimination on the grounds of ‘religion and belief’, which is a far less clear-cut category.
While it isn’t too difficult to determine whether something qualifies as a ‘religion’, as a number of cases have demonstrated, determining what qualifies as a belief isn’t always a straightforward exercise. Is vegetarianism a belief? What about the belief that there was no Holocaust, or that the 9/11 and 7/7 terrorist attacks were a government conspiracy? All of these have been argued before an Employment Tribunal.
Section 10 of the EqA states that in order to qualify for legal protection, the belief in question must:
- Be genuinely held and not a mere opinion or viewpoint of the present state of information available;
- Be a weighty and substantial aspect of human life and behaviour;
- Attain a certain level of cogency, seriousness, cohesion and importance, and be worthy of respect in a democratic society; and
- Be compatible with human dignity, and not conflict with the fundamental rights of others.
Forstater v CGD Europe
The claimant in this case, Ms Forstater, worked as a researcher for CGD Europe, a registered charity focused on reducing global poverty and equality. In her personal life, Ms Forstater was involved in campaigning against proposed reforms to the Gender Recognition Act to allow people to self-identify as the opposite sex. She took to social media to express her belief that sex is an immutable biological fact, stating “men cannot change into women”. This prompted complaints to CGD that Ms Forstater’s views were transphobic, offensive and exclusionary, and the decision was made not to renew her contract.
In response, Ms Forstater brought a claim to an Employment Tribunal for discrimination on the grounds of belief. Her claim was met by support from Index on Censorship, a non-profit organisation that campaigns for and defends free expression, as well as others keen to defend the right to publicly debate the distinction between sex and gender.
The question for the Tribunal was simple: were Ms Forstater’s views protected under the scope of the EqA?
The Tribunal assessed Ms Forstater’s belief that there are two biological sexes in humans against the criteria outlined in section 10 of the EqA. In doing so, it determined that this belief satisfied the first two conditions and part of the third relating to cogency and cohesion, however, crucially, that it was incompatible with human dignity and the fundamental rights of others. As such, it held that it is not a protected belief under the EqA, and Ms Forsteter’s claim was therefore dismissed.
Aftermath
The case has sparked fresh debate over transgender issues and reaction to the Tribunal’s decision has been divided. While some have defended the judgment, emphasising the enormous pain that misgendering can cause, advocates of free speech have argued that Ms Forstater was unfairly subjected to detriment for expressing an opinion that many people share.
Ms Forstater herself has vowed to challenge the decision, suggesting that it sets a dangerous precedent by giving “judicial license for women and men who speak up for objective truth and clear debate to be subject to aggression, bullying, non-platforming and economic punishment”. However, Judge James Tayler, who presided over the case, attempted to allay these fears by making it clear that it is the “absolute” nature of Ms Forstater’s view (i.e. her unwillingness to address people by their preferred pronouns) that prevents her from relying on legal protection as it violates the dignity of others. There is nothing to prevent her from campaigning or expressing her opinion, and as such, the judgment should not interfere with an individual’s right to freedom of expression.
James Tamm
Director of Legal Services
Expert Comment
The judgment seems to read that the employee in this case may have been protected under the EqA if she had been more respectful in terms of using preferred pronouns, etc. As such, potentially, she could have aired her opinion, provided she was respectful of other people’s views/preferences when interacting with colleagues.
For employers, the case presents a number of challenges. How do you assess how ‘absolute’ someone’s beliefs are? Where do you draw the line between allowing employees to express their opinion, and the expression of that opinion within the workplace impacting significantly on colleagues who do not share those views? When will the expression of views which may be regarded as transphobic impact so significantly within the workplace so as to justify dismissal?
With so many factors to consider making the potential for legal missteps high, it pays to take advice from an Employment Law specialist before acting.
