Transgender and competing rights in the workplace

Two recent decisions have highlighted the fine balancing act for employers when dealing with the issue of transgender rights in the workplace.

The Forstater case

Forstater v CGD Europe and others ET/22200909/2019

The first case is a decision of the employment tribunal in the claim brought by Maya Forstater, when her contract was not renewed due to her expression of gender critical beliefs.

Last year, the Employment Appeal Tribunal held that Ms Forstater’s gender critical beliefs, including a belief that a person’s biological sex should not be conflated with gender or gender identity, amounted to a ‘philosophical belief’ and was therefore protected under the Equality Act 2010 (see our previous briefing).

Ms Forstater, who worked as a consultant for the respondent organisation, had written various tweets reflecting her opinion that sex is immutable; people are born either male or female and that position does not change even if a trans person has received medical treatment as part of their transition. After receiving complaints from colleagues, who considered that she was expressing transphobic opinions, the respondent conducted an investigation and later decided not to renew Ms Forstater’s contract.

Following the EAT’s decision, the case went back to the employment tribunal to decide whether the respondent had directly or indirectly discriminated against Ms Forstater, victimised, or subjected her to harassment, either because of her beliefs or the manner in which she had expressed them.

Employment tribunal decision

The tribunal upheld Ms Forstater’s claims for direct discrimination and harassment. The respondent’s decision not to renew her contract amounted to less favourable treatment on the grounds of her belief.

In the tribunal’s view, none of the manifestations of Ms Forstater’s belief, including the tweets she had sent, were objectively offensive or unreasonable. The tribunal was therefore satisfied that she had manifested her beliefs in an appropriate manner. It also held that a single inappropriate manifestation of a belief would not necessarily justify action being taken; it was necessary to look at the conduct as a whole.

The tribunal’s judgment accepts that gender critical beliefs “may well be profoundly offensive and even distressing to many others, but they are beliefs and must be tolerated in a pluralist society”.

The Mackereth case

Mackereth v DWP [2022] EAT 99

The second case is an EAT decision in a claim brought by a Christian doctor who resigned as a health and disabilities assessor at the Department for Work and Pensions following his refusal to address transgender claimants by their chosen pronoun.

An employment tribunal previously held that Dr Mackereth’s specific beliefs relating to transgenderism, including that sex and gender cannot be changed at will, did not satisfy the criteria for a belief protected under the Equality Act 2010. In particular, his beliefs did not satisfy the requirement, established in case law, that the belief must be worthy of respect in a democratic society and not conflict with the fundamental rights of others.

In the alternative, the tribunal held that even if Dr Mackereth’s beliefs were protected, he had not been less favourably treated or harassed in relation to them. His claims for direct and indirect discrimination and harassment were dismissed by the employment tribunal (see our previous briefing).

Employment Appeal Tribunal decision

Dr Mackereth’s appeal was dismissed by the EAT. It held that the tribunal, whose decision predated the EAT decision in the Forstater case, was wrong to find that Dr Mackereth’s beliefs were not protected. It had imposed too high a threshold in applying the requirement for a belief to be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. The threshold for a belief to be protected is low, allowing for the protection not just of those beliefs held to be acceptable by the majority but also of minority beliefs, even where those beliefs might offend others. The tribunal had also failed to properly consider that a lack of belief (in transgenderism and gender fluidity), was capable of being a protected belief.

The EAT was therefore satisfied that Dr Mackereth’s beliefs were protected under the Equality Act 2010, as Ms Forstater’s were. However, it was satisfied that he had not suffered direct discrimination or harassment on the grounds of those beliefs. His employer had asked him to clarify his position but had not put him under any pressure to renounce his beliefs and had not made a final decision to dismiss him. The tribunal had been entitled to draw a distinction between Dr Mackereth’s beliefs and the way he wished to manifest those beliefs. It had also been entitled to reject the indirect discrimination claim.

Comment

As these decisions illustrate, employment tribunals (as well as employers) often have to balance the rights of individuals with competing (and conflicting) interests or beliefs. Tribunals are increasingly separating out an individual’s protected belief from the manifestation of that belief, meaning that employers can legitimately restrict such manifestations in the workplace, provided it is necessary, proportionate and in pursuit of a legitimate aim.

It is therefore permitted for employers to introduce, and enforce, some boundaries on the expression of beliefs in the workplace. However, it should be noted that protection does not simply apply to the holding of a belief; the tribunal’s decision in the Forstater case makes it clear that expressing that belief is also capable of protection. Such cases will always be very fact-specific and context will be crucial in determining the outcome.

Interestingly, the respondent in Ms Forstater’s case had tried to argue that it was itself being compelled to manifest a gender-critical belief due to their association with her, but the tribunal rejected this argument. Damage to reputation by association in this context is likely to be difficult for an employer to establish, and particularly in this case since Ms Forstater’s Twitter bio included a disclaimer that her tweets did not represent the views of the respondent.