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Gender critical beliefs: claimant wins tribunal discrimination claim

Posted on 8 July 2022

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An Employment Tribunal has upheld some of Maya Forstater's claims for discrimination against her former employer and its President. The Tribunal found that her mistreatment was because of her protected gender critical beliefs, which she had manifested appropriately.

Gender critical beliefs are protected beliefs

In summer 2021, the Employment Appeal Tribunal decided as a preliminary issue in this case that Ms Forstater's gender critical beliefs (beliefs outlined in the judgment as follows: that biological sex is real, important, immutable and not to be conflated with gender identity) are protected philosophical beliefs under the Equality Act 2010. Her case then continued to a full hearing in the Employment Tribunal, to determine whether she was unlawfully discriminated against because of her protected beliefs.

Beliefs were manifested in an appropriate way

After some of her work colleagues complained that Ms Forstater was tweeting about her gender critical beliefs, her visiting fellowship was not renewed and she was not offered an employment contract with the employer. The Tribunal held that this was because of her gender critical beliefs, which she had expressed in an appropriate manner. It therefore upheld some of her direct discrimination claims as well as a victimisation claim regarding the removal of her profile from the employer's website. The Tribunal did not uphold Ms Forstater's victimisation claim regarding the withdrawal of an offer to engage her as a consultant and her harassment and indirect discrimination claims.

What this means for employers

The judgment highlights the fine distinctions that need to be considered in this context. Holding gender critical beliefs is protected under the Equality Act 2010, as is manifesting those beliefs through lawful speech and engagement in public debate. However, an employer will not be committing discrimination if it takes action against an employee who has manifested their beliefs inappropriately.

On the facts of the case, Ms Forstater had made straightforward statements of her gender critical beliefs and had criticised those holding opposing views to her in an objectively reasonable way. Even though her comments caused offence to some, in the particular context of the social media debates in question, she was manifesting her beliefs appropriately.

Employers therefore need to ensure they have a clear justification for seeking to limit employees from expressing lawful beliefs, even if those beliefs are controversial, and cannot cherry pick which protected beliefs are "acceptable".  

However, this judgment does not mean that people who hold gender critical beliefs can freely mis-gender trans people with impunity. Such conduct can still be unlawful harassment or discrimination, depending on the context. Employers may wish to review their equal opportunities, anti-harassment and social media policies to ensure that they strike the right balance.

If you would like more information on managing discrimination in the workplace, please get in touch with your usual Mishcon contact or with a member of the Employment team.

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