Sex, gender and freedom of speech in the workplace

In the recent case of Forstater vs CGD, the employment appeal tribunal (EAT) held that gender critical beliefs are protected under the Equality Act 2010. What does this mean for employers?

GCD decided not to renew Ms Forstater’s fixed-term contract following complaints by colleagues about her comments on social media regarding proposed reforms to the Gender Recognition Act. These proposals (since dropped) would have allowed men to self-identify as women and vice versa. Ms Forstater said the decision not to renew her contract was discrimination on the basis of her gender critical beliefs: namely that biological sex is real, cannot change, and is not the same as gender identity. She claimed under the Equality Act 2010, which protects religious and certain other philosophical beliefs.

Ms Forstater initially lost in the employment tribunal. However, the EAT overturned that decision. Her appeal was supported by the Equality and Human Rights Commission and the free speech body Index on Censorship.

The EAT noted the importance of free speech and diversity of thought and said that beliefs should be protected unless aimed at the destruction of others’ rights and freedoms – for example, Nazi beliefs. It said that Ms Forstater’s beliefs were not close to that threshold. On the contrary, it recognised her views are widely held, consistent with current law on sex and gender, and don’t inherently damage the rights of trans people.

The EAT recognised that Ms Forstater’s views may upset or offend some people, but said that does not make them unlawful. These comments are important for those with gender critical beliefs and more generally for future cases on a range of philosophical beliefs.

What this mean for employers

Employees with gender critical beliefs are protected from discrimination and harassment in the same way as those with religious or other protected philosophical beliefs, and other protected characteristics such as sex, race and gender reassignment.

It’s not belief but its expression

The employment tribunal will now consider whether the non-renewal of Ms Forstater’s contract was because of her belief or whether it was because of the way in which she manifested that belief – and if so, whether it was discrimination. In practice, this is always highly case-specific.

Employers’ obligations

The key points for employers are:

• An employer would not prioritise one religion over others, and the same applies to gender critical beliefs. All protected beliefs and protected characteristics have to be treated equally – so, for example, social media policies should be written and applied consistently.
• An employee who does not believe in gender identity should not be pressured to state their pronouns, for instance in email signatures. Such policies are often well-meaning but blunt instruments that may offend the beliefs of some staff. Trans employees who are not “out” may also find these policies difficult.
• Using terms such as “terf” or “bigot” will be unlawful harassment, and should be dealt with like any other form of verbal abuse.
• Trans people must also be protected from harassment. Deliberately refusing to use their preferred pronouns is likely to be harassment on the basis of gender reassignment, but an honest mistake is not. Likewise, politely stating an objection to trans women using the women’s toilets on the basis they are biologically male is not harassment. There is no right not to be offended and a polite discussion about single-sex spaces or sport is unlikely to be harassment. Policies should reflect the importance of respect at work. All employees should be civil to each other and not allow their views to affect working relationships.
• Employers should ensure that any stance taken, for instance in diversity training, does not create a hostile atmosphere for those with gender critical beliefs.
• Employers should consider the reputational risk of association with third parties such as Stonewall, whose CEO has described gender critical beliefs like those of Ms Forstater as being akin to anti-Semitism. The organisation is also currently facing legal action by a black lesbian barrister on the basis that it pressured her chambers to take action against her because of her publicly stated gender critical beliefs.
• They should also be cautious about taking guidance from Stonewall, whose views on certain issues such as use of toilet facilities at work fails to consider the needs of other groups such as women, and some ethnic and religious minorities. In fact the Workplace (Health Safety and Welfare) Regulations 1992 require single-sex toilet and washing facilities. Health & Safety Executive guidance makes clear that this means a separate lockable room, not merely a cubicle.
• The Forstater decision does not just affect employers and employees. Organisations will also need to consider the impact of the ruling on their third-party relationships, since the Equality Act applies also to landlords, service providers and public authorities.

Employers should also note that in collecting diversity data the relevant question should be about sex, not gender, with the options of “female”, “male” and “prefer not to say”. An optional question on gender identity may be added but must not replace that on sex.

Rebecca Bull is a solicitor in private practice, and a director of Sex Matters