Employment Alert – Gender-identity critical views found to be a protected belief under the Equality Act

11 Jun 2021

Critical views on Gender-Identity found to be a protected belief under the Equality Act

What’s happening?

In the case of Forstater v CGD Europe and others, the Employment Appeal Tribunal (EAT) has found that an individual’s belief that “sex is immutable and not to be conflated with gender identity” is a protected philosophical belief under the Equality Act.

The EAT’s decision reverses the finding of the Employment Tribunal, which held that this belief could not be protected under the Equality Act, on the grounds that it is ‘not worthy of respect in a democratic society’.

The EAT considered that the expression of a belief would only fall within the category of being ‘not worthy of respect’ if it was akin to Nazism or totalitarianism. The EAT went on to find that the views expressed by the Claimant did not seek to destroy the rights of trans people, and so did not fall into this category.

This means that, based on someone holding a belief in this way, it would be unlawful for an employer to discriminate against a member of staff for expressing such beliefs.

Why is this important?

This decision is likely to create confusion within the business community because it may be perceived as giving people the go ahead to act in a discriminatory manner if they hold critical views on gender identity. However, we cannot forget that both groups are potentially protected under the Equality Act 2010.

It’s important to note that despite what the headlines may suggest, people who express critical views on gender identity will not be automatically absolved of any consequences because of this decision. Firstly, for a person with such views on gender identity to be protected under discrimination legislation, their belief would need to satisfy the test of ‘philosophical belief’ for the purposes of the discrimination law.

In addition, the way the views are expressed will also be crucial to the decision of whether disciplinary action should be taken. For example, the EAT was at pains to clarify that its judgment should not impact upon the rights of trans people and people with gender-identity critical beliefs could not, for example, “misgender” trans people with impunity.

In summary, this decision should be handled carefully in practice.

What should you do?

These issues are growth areas for litigation. We understand that this decision itself may be appealed. If they have not already, employers need to begin grappling with these issues sooner rather than later. Considering policies and training on how they will fairly support both trans people and their colleagues in their workplace.

 

To read our recent article about gender identity in the workplace, click here

 

If you need more information please contact us on 0800 2800 421 or email Employment.Alert@trethowans.com to find out how we can help.

 

Author

Kathryn Evans

Partner