The first half of July has seen two interesting decisions on the issue of handling gender-critical beliefs in the workplace. In one case, an employment tribunal found that refusing to offer a job to someone due to their gender-critical beliefs is direct discrimination. Meanwhile, in a separate case, the Employment Appeal Tribunal (EAT) has held that a Christian doctor was not discriminated against for refusing to address transgender people by their chosen pronoun. 

Forstater v. CGD Europe and others

Maya Forstater worked as a consultant for the Centre for Global Development Europe (CGDE), the European arm of the Centre for Global Development (CGD), a Washington-based think tank. 
Ms Forstater believes that biological sex is real, important, immutable and not to be conflated with gender identity. She considers that statements such as "women means adult human female" or "trans women are male" are statements of neutrality and are not expressions of antipathy towards trans people or "transphobic". Ms Forstater engaged in debates on social media about gender identity issues. She also left a gender-critical campaign booklet in the office. Following the government consultation on amendments to the Gender Recognition Act in 2018, Ms Forstater tweeted: "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". Some staff at the CGD complained that Ms Forstater's tweets were transphobic, exclusionary, offensive and made them feel uncomfortable. CGD launched an investigation into the tweets and decided not to renew Ms Forstater's contract. 

Ms Forstater lodged a claim with the Employment Tribunal (ET) against CGDE, CGD and its president Mr Ahmed, alleging that she had been directly discriminated against and harassed due to her gender-critical beliefs, claiming that her beliefs, namely that there are only two sexes (male and female) and that it is impossible for a person to change sex, were philosophical beliefs which should be protected under the Equality Act. 

Did Ms Forstater's gender-critical beliefs qualify for protection?

At an initial hearing, the ET considered whether Ms Forstater's beliefs qualified as "philosophical beliefs" using the Grainger criteria, which provide that:

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

Whilst the ET found that Ms Forstater's beliefs did not satisfy the fifth criterion because her views were "absolutist" and "not worthy of respect in a democratic society", the Employment Appeal Tribunal held that Ms Forstater's beliefs were worthy of protection. The EAT held that, while a belief such as Ms Forstater's may be considered to be offensive, abhorrent or even distressing, Ms Forstater's statements did not seek to destroy the rights of trans persons and that her beliefs must be tolerated in a pluralist society. The manifestation of her beliefs may be restricted, but the focus should be on the belief itself, not the manifestation of it. The EAT considered Articles 9 (freedom of thought, conscience and religion) and 10 (freedom of expression) of the European Convention on Human Rights (ECHR) which award protection to diverse thought and beliefs. The EAT concluded that Ms Forstater did satisfy the fifth Grainger criterion which has a low threshold to satisfy and that only views akin to Nazism or totalitarianism should be considered unworthy of protection under Articles 9 and 10 of the ECHR. 

The EAT reinforced that the role of tribunals is not to decide which beliefs are more acceptable, but to remain neutral and ensure that groups opposed to one another tolerate each other.

Did CGD unlawfully discriminate against Ms Forstater? 

The ET then had to decide whether Ms Forstater had been unlawfully discriminated against because of her protected belief. The ET found that CGD had directly discriminated against Ms Forstater because of her gender-critical beliefs by not renewing her fellowship and by removing her from its website. 

The ET recognised that Ms Forstater was legitimately entitled to critique those with opposing views and the fact that offence may be taken in response to her statements is not sufficient to take away legal protection. The ET went on to find that none of the manifestations of Ms Forstater's beliefs, taken individually or overall, were objectively offensive or unreasonable. This finding was unanimous except in relation to one instance, where the finding was by a majority. Additionally, it was not the case that crossing the line on a single occasion would have been sufficient to justify action being taken against her. 

EAT: Christian doctor not discriminated against for refusing to address transgender people by their chosen pronoun

In contrast to the ET's decision in Forstater, we have the EAT's recent decision that a Christian doctor was not discriminated against for refusing to address transgender people by their chosen pronoun. The doctor adhered to the principles of the Great Reformation of the 16th century, including a commitment to the supremacy of the Bible as the infallible, inerrant word of God. The doctor had been engaged to carry out health and disability assessments. The issue had not come up in practice, but the doctor indicated during training that, due to his beliefs, he objected to using pronouns or titles that were inconsistent with a service user's birth gender. 

The reason the doctor failed, where Ms Forstater succeeded, was that the EAT found it was possible to separate the doctor's beliefs from the way in which he wished to manifest them. The original tribunal found that two provision, criteria or practices (PCPs) had been applied to the doctor (requiring assessors to use service users' preferred pronouns and form of address, and to confirm a willingness to adhere to this) and that there was a group disadvantage to Christians in applying those PCPs. The EAT upheld the original tribunal's decision that the PCPs were a necessary and proportionate means of achieving the aim of treating transgender service users with respect. They were therefore not unlawfully discriminatory. Alternatives to accommodate the doctor's beliefs had been considered but none were practicable.

What do these cases mean for employers? 

The Forstater case is being seen as a landmark by some commentators, affirming that people are generally able to freely hold and express their beliefs in the workplace and express them as part of a respectful discussion or debate, unless it is akin to Nazism or totalitarianism. The judgment shows that a broad range of beliefs are protected under the Equality Act and that it is not for a tribunal to decide whether a belief is acceptable. It is important to remember that it is only a first instance decision and CGD may appeal. This judgment has generated much attention in the media and is testament to the passion and high-stakes importance each side of the debate places on cases which explore beliefs about gender.

In a diverse workforce, there will naturally be differing beliefs and therefore employers should take a sensitive approach and treat differing views consistently. It is more important than ever that employers train their staff to respect each other's views, beliefs and opinions and promote diversity in the workplace. 

For employers, knowing where to draw the line is a challenge, as individual cases are very fact-sensitive. For this reason, drawing broad conclusions from case law such as it is acceptable for an employee to say "trans women are male" (as in the case of Ms Forstater), but misgendering a service user crosses the line (as in the case of the Christian doctor) ignores the context behind these decisions. Employers should therefore seek advice before taking action against employees (such as disciplining, not renewing their contract or dismissing them) for expressing their beliefs. There is a risk that in doing so the employer may be found to have discriminated against or harassed the employee. That said, employers must create a safe working environment free from harassment and discrimination so, whilst beliefs such as Ms Forstater's may be protected in the workplace, the way in which those beliefs are manifested may be restricted (for example, it does not mean that employees can misgender trans persons). 

If you have any questions or would benefit from some guidance in this sensitive area of law, our PRM team would be happy to help, so please do not hesitate to get in touch.