Employment Tribunal rulings on gender-critical beliefs in the workplace

A series of employment tribunal rulings since 2021 have considered whether and to what extent gender-critical beliefs count as “philosophical beliefs”. Philosophical beliefs are protected from discrimination under the Equality Act 2010.

Gender-critical beliefs include the belief that sex is biological and immutable, people cannot change their sex and sex is distinct from gender-identity.

The rulings also explore how protections for philosophical beliefs (under section 10 of the Act) interact in the workplace with the protections from discrimination on the basis of sex or gender reassignment under sections 7 and 11.

This Insight looks at three significant recent cases and what they mean for employment law in this area.

The Grainger criteria

The Grainger criteria are important background for all three cases. This is the test, established by the Employment Appeal Tribunal (EAT) in a 2009 case Grainger plc v Nicholson, for whether something qualifies as a “philosophical belief” under the Equality Act. There are five criteria such a belief must meet:

(i) The belief must be genuinely held.

(ii) It must be a belief and not, [simply], an opinion or viewpoint based on the present state of information available.

(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.

(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.

(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others

Forstater case

Maya Forstater, a tax expert and international development researcher, was contracted as a visiting fellow by the Center for Global Development Europe (CGD) think tank. In 2018, she posted several tweets and had a discussion with a staff member expressing her belief that sex is immutable and not to be conflated with gender identity.

She also expressed her opposition to proposed changes to the Gender Recognition Act 2004 (GRA) that would allow transgender people to achieve legal recognition of their acquired gender based only on self-identification. As a result, CGD did not renew her contract at the end of 2018. For more details on the proposed changes to the GRA see the Library briefing Gender Recognition Act reform: consultation and outcome.

Maya Forstater brought claims for discrimination and victimisation. The initial claim failed as the employment judge found her beliefs failed the fifth Grainger criterion of being “worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others”.

Maya Forstater appealed to the EAT, which in June 2021 overturned the tribunal ruling, finding that her beliefs were protected by the Equality Act. In Maya Forstater v CGD Europe and Others: UKEAT/0105/20/JOJ the judgment noted:

Just as the legal recognition of civil partnerships does not negate the right of a person to believe that marriage should only apply to heterosexual couples, becoming the acquired gender ‘for all purposes’ within the meaning of GRA does not negate a person’s right to believe, like the claimant, that as a matter of biology a trans person is still their natal sex. Both beliefs may well be profoundly offensive and even distressing to many others, but they are beliefs that are and must be tolerated in a pluralist society.

The EAT said this “does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity” and noted that acts of harassment and discrimination against trans people in the workplace are also prohibited by the Equality Act.

Bailey case

Allison Bailey, a barrister and founder of the LGB Alliance campaign group, brought a discrimination claim against Garden Court Chambers, where she worked. She also brought a connected claim against the charity Stonewall, alleging Stonewall had induced or caused the Chambers to discriminate against her because of her gender critical beliefs.

Allison Bailey had tweeted her opposition to Stonewall’s campaign for legal gender self-identification. The respondents accepted, because of the earlier decision in Forstater, that gender critical belief was protected under the Equality Act. However, they disputed “that her views about Stonewall’s campaigning on gender self-identity are part of this protected belief.”

In Ms A Bailey v Stonewall Equality Ltd and others: 2202171/2020, in July 2022,  the tribunal found that Allison Bailey’s beliefs and disagreement with Stonewall’s campaigning were protected as they could not be separated from one another. The judgment said:

Belief on gender theory is a belief about a weighty and substantial aspect of human life, especially when reform of the law based on that belief may have significant practical consequences for women as currently defined in law.

The claimant alleged that she suffered five detriments by the Chambers due to her protected beliefs. Two were upheld.

Allison Bailey’s separate claim that Stonewall “instructed, induced or caused, or attempted to induce or cause” the detriments to her was rejected by the tribunal.

Mackereth case

Dr David Mackereth’s views related to his Christian beliefs, including that people cannot change their sex or gender.

He applied for a job as a health and disabilities adviser with the Department for Work and Pensions (DWP). He stated his objections to addressing service users by pronouns, titles or forms of address that differed from their sex registered at birth. This contradicted his employer’s policy and, after attempting to clarify the position with him, his contract was terminated.

David Mackereth brought an employment tribunal claim of discrimination on the grounds of religion or belief against DWP.

The tribunal found his gender critical beliefs did not meet the Grainger criteria for protected beliefs under the Equality Act and that, even if they did, no discrimination occurred.

On appeal, in Dr David Mackereth v The Department of Work and Pensions (1) Advanced Personnel Management Group (UK) Limited (2): [2022] EAT 99, the EAT found David Mackereth’s gender critical beliefs did meet the Grainger threshold for protection but, nevertheless, that no direct or indirect discrimination took place.

This was because the employer would have treated any worker who refused to address service users in their preferred way the same and the policies of the employer “were necessary and proportionate to meet a legitimate focus on the needs of potentially vulnerable service users”.

The EAT noted the claimant’s gender critical beliefs (protected under the Act) were distinct from how those beliefs manifested in him refusing to use peoples’ preferred forms of address (behaviour which was not protected).

Implications of these cases

The outcomes of the three cases have established two important points.

Firstly, that gender-critical beliefs can be protected from discrimination under the Equality Act 2010.

Secondly, however, that the ways in which such beliefs manifest themselves in behaviour might not be protected. It depends on what those behaviours are and how they impact on the legal rights of others not to be discriminated against on the basis of their sex or gender reassignment.

Employers need to both avoid discrimination against people because of gender-critical beliefs and also avoid discrimination on the basis of gender reassignment.

About the author: Patrick Briône is the employment law and policy specialist in the House of Commons Library

Photo by Damir Kopezhanov on Unsplash