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Are gender-critical beliefs protected under the Equality Act 2010?

 

Blog post written by Brabners LLP

 

The question of what amounts to a philosophical belief which qualifies for protection under the Equality Act 2010 (“the Act”) continues to raise difficult issues for the Employment Tribunals.

This highlights the challenges that employers face when having to take decisions about whether privately held beliefs impact on an individual’s suitability for continued employment.

 

Forstater v CGD Europe and others

 

In the recent well-publicised case of Forstater v CGD Europe and others, the EAT held that gender-critical beliefs, including a belief that sex is immutable and should not be conflated with gender identity, are protected under the Equality Act 2010.

 

Maya Forstater was a researcher, writer and adviser on sustainable development, and she was contracted by CDGE, a not-for-profit think tank, under consultancy agreements as a “visiting fellow”.

 

Ms Forstater engaged in a number of debates on social media about gender identity issues where she made a number of statements in opposition to the UK government’s proposed changes to the Gender Recognition Act 2004 (“GRA”). Ms Forstater voiced her beliefs that, while a person can identify as another sex and ask people to go along with it, and can change their sex under the GRA, this does not change their actual biological sex.

 

In doing so, Ms Forstater made certain remarks which some trans people found offensive, leading to some of her colleagues making complaints alleging that her views were transphobic. Following an investigation, CGDE decided that her visiting fellowship would not be renewed after it expired in 2018.

 

As a result, Ms Forstater pursued an Employment Tribunal claim alleging that her gender-critical views constituted a protected ‘philosophical belief’ under the Act and that CGDE’s decision not to renew her contract constituted discrimination.

 

Following a preliminary hearing, the Tribunal concluded that Ms Forstater’s beliefs did not amount to a philosophical belief that qualified for protection under the Act. The Tribunal noted that, even taking into account an individual’s right to freedom of expression, people cannot expect their beliefs to be protected if their core belief involves violating others’ dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

 

Ms Forstater appealed to the Employment Appeal Tribunal (“EAT”).

 

In its judgment, the EAT acknowledged that Ms Forstater’s belief was offensive to some and that it had the potential to cause harassment of trans people in some circumstances. However, the EAT commented that it was “only those beliefs that would be an affront to [the European Convention on Human Rights] principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection.”

 

As such, the EAT concluded that Ms Forstater’s belief was a protected philosophical belief under the Act and upheld her appeal. The claim was therefore remitted to the Employment Tribunal and Ms Forstater’s claims of direct discrimination and victimisation were substantially upheld.

 

Mackereth v DWP

 

In another recent case, Mackereth v DWP, the EAT considered whether a Christian doctor’s belief that a person cannot change their sex/gender at will was capable of protection as a religious or philosophical belief under the Act, and whether the employer’s conduct because the individual would not agree to use a trans person’s chosen pronouns was discriminatory on the grounds of that belief.

 

Dr Mackereth applied to work as a health and disabilities assessor (“HDA”) at the DWP. The role of HDA required Dr Mackereth to assess claimants for disability-related benefits, including conducting face-to-face assessments and writing reports.

 

Dr Mackereth adhered to the principles of the Great Reformation of the 16th century, including a commitment to the supremacy of the Bible as the word of God and the final authority in all matters of faith and practice.

 

In May 2018, Dr Mackereth commenced an induction course. During a discussion, the question was raised of how HDAs should refer to someone who was transgender. The lead physician responded, in accordance with the DWP’s policy, that transgender individuals should be given their preferred name and title, and always referred to in their presented gender. Where possible, HDAs should seek to use the person’s first name rather than a gender-specific form of address. Dr Mackereth explained that, due to his beliefs, he objected to using pronouns or titles inconsistent with a person’s birth gender (although he did not object to using whatever first name the service user wished). In his previous role as an A&E doctor, the hospital had been aware of his beliefs and had helped him avoid having to deal with transgender people.

 

The lead physician wanted to check if a similar accommodation could be provided in this role. Two possible alternatives were identified, neither of which were practicable. A non-customer-facing role required 12 months’ experience, which Dr Mackereth did not have, and it was not possible to ensure he only assessed non-transgender service users, as often such users did not present as transgender until the assessment, particularly if they suffered from a mental health impairment.

 

The contract manager, Mr Owen conducted an information-gathering meeting with Dr Mackereth, during which Dr Mackereth acknowledged that, while he did not intend to offend or harm anyone, his behaviour could be perceived as offensive by transgender people. The next day Dr Mackereth said that he felt too distracted to work and went home. Mr Owen called him to check that he had correctly understood that Dr Mackereth did not intend to continue working, and Mr Owen concluded that Dr Mackereth would not return to work until the matter was resolved. Mr Owen, however, interpreted this as a suspension and said that he would take legal advice.

 

Around two weeks later, Mr Owen emailed Dr Mackereth to ask him for a final time whether he would follow the DWP’s policy of referring to service users in their chosen form of address. Dr Mackereth responded that he was a Christian and could not in good conscience do this. Mr Owen subsequently wrote to confirm that Dr Mackereth would therefore not be able to work as an HDA.

 

Dr Mackereth brought employment tribunal claims for direct discrimination, harassment and indirect discrimination, relying upon the protected characteristic of religion or belief. The tribunal dismissed the claims, finding that Dr Mackereth’s beliefs did not qualify for protection under the Act, particularly because to qualify for protection the belief must be worthy of respect in a democratic society and must not conflict with the fundamental rights of others.

 

Even if Dr Mackereth’s beliefs were protected, the tribunal did not consider that he had been less favourably treated or harassed in relation to them. The tribunal found on the facts that he had not been called out of work and interrogated about his beliefs, as he had alleged, rather he had asked to be excused from work himself rather than being suspended, and that his employer had merely been seeking to explore how his beliefs could be accommodated. The purpose of these enquiries was not to violate Dr Mackereth’s dignity or create an adverse environment for him and they did not objectively have the effect of harassment. Regarding the direct discrimination claim, the reason for Dr Mackereth’s treatment was that the DWP wished to treat its service users in the manner of their choosing, and any person not holding Dr Mackereth’s Christian beliefs who refused to comply with the policy would have been treated in the same way.

 

Dr Mackereth appealed to the EAT, however the EAT dismissed the appeal.

 

The fact that Dr Mackereth’s beliefs were likely to cause offence did not justify their exclusion from protection under the Act. The EAT referred to the comment in the Forstater case (above) that a belief which is offensive will not be excluded form protection under the Act as long as long as it doesn’t go so far as “destroying the rights of others”.

 

The EAT therefore concluded that the tribunal had been wrong to find that that Dr Mackereth’s beliefs did not qualify for protection under the Act, albeit the EAT agreed with the tribunal that there was not actually any discrimination or harassment of Dr Mackereth based on his beliefs.

 

Conclusions

 

Clearly these are important cases for both employers and employees, not only because of the impact on the debate over trans rights and the rights of those with gender critical views, but also because of its potential wider impact on the definition of a philosophical belief under the Act.

 

Evidently, these findings means that those with gender critical views may argue that their beliefs are protected under the Act, even if they cause offence to others. Organisations will need to ensure that any stance that they have taken on the issue of trans rights does not give rise to potential discrimination claims, ensuring that the rights of trans persons and those who hold a belief in gender identity are respected.

 

Looking more widely, the EAT has made clear that the freedom of belief, pluralism, tolerance, broadmindedness and freedom of expression are cornerstones of a liberal democracy, and that freedom of belief in this context includes the freedom to believe things that others might find shocking or even offensive.

 

In future cases, the EAT has indicated that it hopes that less time and effort will be spent analysing whether or not a belief is protected and that there will be greater focus on whether or not a person has been discriminated against because of their belief. However, this is a developing area of law and the cases in this area are invariably fact-specific, meaning that employees cannot assume that these cases represent a green light to make public their support for controversial viewpoints without giving thought to the impact that this may have on colleagues in the workplace.  The decision in Mackereth also provides a reminder that simply because an individual’s belief may be protected, it does not automatically follow that there has been discrimination unless it is established that they have been subject to some form of discrimination because of that belief.

 

For employers, it will be important to think carefully before taking any action against an employee who expresses a view or belief which others may find shocking or offensive. If employers are looking to promote an EDI agenda which encourages the recruitment of colleagues from a wide range of backgrounds, then it has to do so on the basis that those colleagues can be expected to have a wide range of differing beliefs, some of which will be protected even though they may cause friction and clash with the strongly held views of their colleagues.

 

That said, these judgments do not mean that those individuals who hold such beliefs can offend others with impunity, and it does not limit the rights of others not to be subjected to discrimination or harassment as laid out by the Equality Act 2010. We expect there will be further cases arising out of competing beliefs of employees particularly on such hotly debated matters as transgenderism, but if an employer can show that its policies have a legitimate aim, and that they have acted reasonably and considered alternatives resolutions to try to accommodate both parties where possible/appropriate, this will stand them in good stead in the event of a claim.

 

This bulletin is for general guidance purposes only and should not be used for any other purpose.

Brabners is a Limited Liability Partnership.