Discrimination due to gender-critical views

In a highly publicised case, Maya Forstater successfully appealed to the Employment Appeal Tribunal (EAT) that her gender-critical views were protected as a philosophical belief under the Equality Act 2010. She believes that it is impossible to change sex, saying “biological sex is immutable,” which contradicts the views of many trans people and trans supporters.

Forstater posted her opinions on her personal Twitter account, which included “I don’t think people should be compelled to play along with literal delusions like ‘trans-women are women’”, and “radically expanding the legal definition of ‘women’ so that it can include both males and females makes it a meaningless concept, and will undermine women’s rights and protection for vulnerable women and girls”. These Tweets ultimately led to her contract not being renewed by the Centre for Global Development (CGD) and her profile was removed from the organisation’s website.

As a result, she raised a claim for philosophical belief discrimination; the first Employment Tribunal (ET) found that her belief was not protected because it did not meet the 5th strand of the ‘Grainger’ test, which requires beliefs to be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

She appealed this decision to the EAT, who decided her belief was protected. The EAT was very clear that, for the belief not to meet the 5th strand, it had to be “the gravest form of hate speech, was inciting violence, or was as antithetical to Convention principles as Nazism or totalitarianism.” Following the EAT’s ruling, the case went back to the ET to decide whether Forstater was discriminated against for holding her protected beliefs.

In a judgment released in July 2022, the Employment Tribunal confirmed that the actions of the CGD amounted to unlawful direct discrimination and victimisation. The ET’s judgment is somewhat unsurprising given the circumstances. The key determination in this case was the EAT’s ruling that Forstater’s gender-critical beliefs were worthy of protection under the Equality Act as a philosophical belief. Where an employee is found to hold a protected philosophical belief, and is subjected to a detriment as a result (in this case, her contract was not renewed), it is likely that claims for discrimination will succeed.

Employers must keep in mind that, even where they do not agree with an employee’s opinions or viewpoints, it’s possible that it will still be a protected characteristic. Employers may only have flexibility to take action against an employee for their belief if the belief seeks to destroy the rights of others. As confirmed by the tribunal system, a belief is still worthy of protection even where it may cause offence or upset to others.

Businesses are encouraged to have diverse workforces, with differing backgrounds, opinions, and beliefs. A robust diversity and inclusion policy, supported by training sessions and initiatives, can allow employees to collaborate and share ideas amicably. However, employers should be clear that no employee should be subject to any form of bullying, discrimination, or harassment due to any protected characteristic they hold.