Hot Topic: Gender critical views and the Equality Act

Like it, loathe it or not have strong feelings towards it, social media is part of life.  It provides those who are active on it with an opportunity, should they wish, to broadcast their personal beliefs on all matters (no matter how sensitive) to a very public audience. 

Where they do, offence can be caused, and employers are increasingly expected to discipline employees who have expressed views inconsistent with company values.  This is especially the case with posts relating to emotive topics such as the rights of transgender people.

When dealing with allegations of misconduct arising from the expression of personal beliefs, businesses should be mindful that those who have been offended might not be the only people afforded protection by the Equality Act 2010. 

Under the provisions of the Equality Act, it is unlawful to treat an employee less favourably because of a philosophical belief.  Also, a provision, criterion or practice that indirectly discriminates against those holding a philosophical belief must be justified as a proportionate means of achieving a legitimate aim and harassment related to a philosophical belief is also unlawful.

A belief will qualify as a ‘philosophical belief’ under the Equality Act if it is

• genuinely held;
• not simply an opinion or viewpoint based on the present state of information available;
• concerns a weighty and substantial aspect of human life and behaviour;
• attains a certain level of cogency, seriousness, cohesion and importance;
• worthy of respect in a democratic society;
• not incompatible with human dignity; and
• not in conflict with the fundamental rights of others.

The recent Employment Appeal Tribunal (EAT) decision in Forstater v CGD Europe and ors, (summarised in our June bulletin), provided helpful (and previously lacking) guidance on the criterion of "worthy of respect in a democratic society", and the extent to which it can exclude beliefs that others find offensive, from the protection of the Equality Act.

The impact of Forstater

Forstater concerned a ‘gender-critical’ belief, that sex is biologically set; that sex rather than gender identity is fundamentally important; and that a trans woman is not in reality a woman, or a trans man in reality a man. In a preliminary ruling, an employment tribunal found that, although this belief satisfied the first four of the above criteria, it was not worthy of respect in a democratic society.

The EAT overturned that decision and stressed that everyone is entitled to their own beliefs, and the protection of the Equality Act is subject only to the fairly modest thresholds set out in the above criteria. The only beliefs not worthy of respect in a democratic society involve a very grave violation of the rights of others, tantamount to the destruction of those rights. It found that the gender-critical belief, although obviously capable of causing offence to many, fell short of that standard.

Decisions such as this one obviously represent legal developments but will also impact policies and practices in all workplaces. Both the specific finding that a gender-critical belief can be a philosophical one under the Equality Act and the broader finding that only a very limited set of beliefs will be excluded by the ‘not worthy of respect in a democratic society’ criterion could prove very influential in terms of shaping the approach to accommodating those with conflicting beliefs.

What does this mean for employers and their approach to inclusivity?

The EAT said that its judgment does not mean that an employee who holds gender-critical beliefs can misgender trans colleagues with impunity. Doing so can, and often will, obviously amount to discrimination and harassment under a variety of protected characteristics.

Nor are employers prevented from taking measures to provide a safe and inclusive environment for trans persons.

Conversely, a strict or zero tolerance approach to employees expressing gender critical beliefs (either on social media or otherwise) could well give rise to valid claims, despite the fact the beliefs might be obviously contrary to company values. Therefore, where an employer is asked to take action in respect of the expression of personally held beliefs which have caused offence, a balanced approach will stand them in good stead to respond to any subsequent allegations of discrimination.