Transgender views philosophical, EAT holds

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.

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