Transgender views philosophical, EAT holds

  • Discrimination
Transgender Views
Peninsula Logo

Peninsula Group, HR and Health & Safety Experts

(Last updated )

In a case that hit the headlines when author JK Rowling was attacked for tweeting in favour of the claimant, the Employment Appeal Tribunal (EAT) has now handed down a judgment in favour of Maya Forstater.

Ms Forstater, the claimant, published a ‘tweet’ that stated that people cannot change their biological sex. After further tweets in which she questioned government plans to allow people to declare their own gender, her visiting fellowship with the organisation she worked for was not renewed following an investigation. This reaction from the organisation was as a result of complaints from some of her colleagues who found her comments offensive.

In court, she argued that her views are a “material reality”.

Ms Forstater complained that she was discriminated against because of her belief but failed to convince an employment tribunal (ET) which held a preliminary hearing to determine whether the belief was a “philosophical belief” within the meaning of s.10 of the Equality Act 2010.

Describing her belief as being absolutist in nature, the ET said that her decision to “refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment”, was one that was “not worthy of respect in a democratic society”.

However, in its judgment, the EAT recently agreed that Ms Forstater’s belief did fall under the 2010 Act.

The matter will now, the EAT ruled, be remitted to a freshly constituted ET to determine whether the treatment about which she complains was because of or related to that belief. However, Mr Justice Choudhury made it clear that this judgment does not mean that the EAT has expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing.

He also emphasised that the judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity and nor does it mean that employers and service providers will not be able to provide a safe environment for transgender persons.

This EAT ruling has been described as a step backwards for inclusivity and equality for all.

HR implications

Although EAT rulings are binding, it is still uncertain whether this decision will be appealed and whether a Court of Appeal will side with the ET or this recent EAT decision.

As was made clear by the EAT judge, the decision in this case does not allow individuals the freedom to harass others who do not share their “philosophical beliefs” – just because a view is classed as philosophical does not mean that individuals cannot be mindful of how they manifest those beliefs.

With that said, employers must be mindful of the difference between an employee having certain views, however offensive, and using those views to cause offence or to harass others. This could be the difference between a fair and unfair dismissal or discrimination of the individual who holds the philosophical belief. Crucially, where cases like this are observed within an organisation, it should be thoroughly investigated and a fair disciplinary, or grievance, procedure should be followed.


Got a question? Check whether we’ve already answered it for you…

Related articles

  • three people sitting around a coffee table smiling


    Employee Morale

    Read our guide where we'll discuss what positive employee morale looks like, its impact on your company, and methods of boosting employee morale.

    Peninsula TeamPeninsula Team
    • Employee Conduct
  • a woman and a man high fiving by a window


    Building Relationships at Work

    In this guide, we'll discuss building relationships at work, how to promote relationship building, and the benefits of team cohesion.

    Peninsula Team Peninsula Team
    • Employee Conduct
  • a woman smiling during a conversation with two men


    Employee Retention

    In this guide, we'll discuss staff retention, employee retention strategies, as well as how to lower employee turnover and attract top talent.

    Peninsula GroupHR and Health & Safety Experts
    • Employee Conduct
Back to resource hub

Try Brainbox for free today

When AI meets 40 years of Peninsula expertise... you get instant, expert answers to your HR and health & safety questions

Sign up to our newsletter

Get the latest news & tips that matter most to your business in our monthly newsletter.

International sites

© 2023 Peninsula Business Services Limited. Registered Office: The Peninsula, Victoria Place, Manchester, M4 4FB. Registered in England and Wales No: 1702759. Peninsula Business Services Limited is authorised and regulated by the Financial Conduct Authority for the sale of non-investment insurance contracts.

ISO 27001 and 9001 accredited company.
The Sunday Times - Top Track 250.
Glassdoor 2018 Best Places To Work.