What businesses need to know about the law protecting transgender people and philosophical beliefs

Law student, Gabriella Shinwell, gives us her insights into recent case law developments in this area.

Every year June brings more awareness to the LGBTQ+ community through pride month. This serves as a reminder of the rights of this community in our society whether gay, bi, lesbian, transgender or where the individual’s identity and sexuality is more fluid.

The Equality Act 2010 provides protection from discrimination, or unfair treatment, due to certain personal characteristics including gender and sexual orientation. We have already seen developments in case law, which confirm the protection against discrimination is extended to individuals with transgender status, regardless of whether or not they plan to go through gender reassignment.

The Act also provides protection to those who hold a religious or philosophical belief and a recent case has highlighted that this may extend to beliefs that may seem at odds with the protection offered to queer and transgender people. This includes a belief that there are only two genders.

 Forstater v CGD Europe

In this case, the Claimant became involved in a debate about the proposed reforms to the Gender Recognition Act and tweeted a “gender-critical” belief that sex is biologically immutable, meaning that (i) there are only two biological sexes (ii) that it is not possible for a person to change their sex and (iii) it is sex rather than gender identity that is fundamentally important.

CGD received complaints about the Claimant’s tweets, including allegations that she was “transphobic”. CGD did not renew her fixed term contract when it ended. Ms Forstater believed that this was a consequence of her beliefs and claimed she was directly discriminated against.

Ms Forstater lost her case in the Employment Tribunal where the judge held that her belief necessarily involved “misgendering” and was incompatible with the human dignity and the fundamental rights of others.

However, Ms Forstater has recently won her appeal. The question of law for the Employment Appeal Tribunal to determine was whether Ms Forstater’s tweet and the views behind it amounted to a “philosophical belief” that should be protected under the Equality Act 2010. The EAT concluded that it was protected. The judgement demonstrated that a range of beliefs are protected under the Equality Act, because they only need to satisfy some “very modest threshold requirements”.

CGD have indicated that they may appeal this and so the situation remains uncertain.

Employers may need to tread carefully in this area because there is likely to be tension between offering protections that should be afforded to LGBTQ individuals and balancing those against protections for those who hold possibly contrary beliefs.

Where there is a possible conflict, we have seen from earlier case law that the overriding principle should be that a belief will only be protected where it does not infringe on another person’s human rights. That means that staff who hold a similar view to Ms Forstater have the right to hold that view, but must not express it in such a way as to create an offensive or upsetting environment for your staff.

One of the benefits of migrating back to the office as the threat of COVID recedes is that more regular contact between employees and employers can contribute to better understanding of individual’s beliefs and needs, and promote a happier environment in the workplace.

What can employers do?

We recommend that employers update their equality policies to make sure that they include protection for individuals with transgender status. In order to avoid the potential tension outlined above, we also recommend providing equality training to all staff to include how they can contribute to the creation of an inclusive and non-discriminatory workplace, and when a protected belief may need to be exercised with discretion to avoid infringement of another person’s rights.

Employers should be aware that they are liable for any discriminatory conduct of their employees, and of third parties if (1) they knew or should reasonably have known about the discrimination and (2) they failed to act reasonably in response to the discrimination.

To reduce risk, a culture of early discussion should be encouraged so that employees know they can speak up if there have been any incidents. If employees can trust that their employer can help them in situations where they feel uncomfortable at work or being discriminated against, then problems can be resolved earlier and without recourse to more formal or even legal proceedings.

If you would like our help with updating your policies or providing training, or you are concerned that there may be discriminatory conduct in your workplace, please get in touch.