Should belief in biological sex be protected under law?

Employment Law

Written by Brabners LLP

Is a belief that there are only two sexes a protected characteristic under the Equality Act 2010?

Not according to the recent Employment Tribunal judgment in the case of Forstater v CGD Europe & Others [2019]. Will this impact your company or workforce? Read on to find out more!

Background

Ms Forstater worked as a tax consultant at the think tank Centre for Global Development based out of their London office. Her contract with the organisation was not renewed after she took to Twitter to express dismay about proposed changes to the Gender Recognition Act 2004.

The present law states that a trans person who is at least 18 years old and who has lived according to their acquired gender for at least 2 years can apply for legal recognition of their acquired gender through the issuing of a Gender Recognition Certificate. The process requires a medical diagnosis of “gender dysmorphia” before a Gender Recognition Certificate may be issued. Ms Forstater took issue with proposed changes which will allow individuals to self-identify as their chosen gender (rather than requiring a diagnosis of gender dysmorphia), as she believes that a person’s biological sex cannot be changed.

Ms Forstater’s tweets included comments such as “I think that male people are not women. I don’t think being a woman/female is a matter of identity or womanly feelings. It is biology”. In September 2018, in a letter to a Member of Parliament, Ms Forstater also wrote, “it is not possible for someone who is male to become female. Transwomen are men, and should be respected and protected as men.” In response to these tweets, the CGB received complaints alleging that Ms Forstater was transphobic.

When Ms Forstater wasn’t re-engaged by CGD as a consultant, the tax expert brought claims at the Employment Tribunal alleging that she had been discriminated against because of her beliefs. A Preliminary Hearing was called to ascertain, amongst other things, whether Ms Forstater’s views amounted to a “philosophical belief” qualifying for protection under the Equality Act 2010. Ms Forstater’s belief is that “sex is a material reality which should not be conflated with “gender” or “gender identity”. Being female is a…biological fact, not a feeling or an identity”.

Decision

The Tribunal considered the legal test which applies to establish whether someone’s belief qualifies for protection under the Equality Act. Relevant factors include whether the person’s belief has sufficient cogency, seriousness, cohesion and importance and whether it is worthy of respect in a democratic society. There was particular focus on the last aspect of the test i.e. whether Ms Forstater’s belief was worthy of respect in democratic society. In the opinion of the Tribunal, society had progressed beyond fixed ideals in relation to gender. Ms Forstater suggested that her belief should be protected as changes in the law could allow men (who identify as women) to enter women-only spaces. The Tribunal took this into account, but noted that this could be addressed in certain circumstances by having restricted access to transgender women in entering women only spaces.

Essentially the Tribunal determined that Ms Forstater’s intransigent opinions had resulted in the violation of transgender people’s dignity. In particular, Ms Forstater’s belief that she should be able to refer to a person by the sex she considered appropriate (even if that person wished to be acknowledged as being of a different gender) constituted a form of harassment. The Judge found that a continued commitment to not refer to individuals in their chosen manner was unacceptable; a balance was required between the rights of free speech and the rights of others. The Judge concluded that Ms Forstater’s views were not protected as a “philosophical belief” under the Equality Act. 

Although this decision is not binding on other Tribunals, the Telegraph have already dubbed it a ‘test case’ for gender critical review. The case raises interesting questions about where the line should be drawn between an individual’s right to express their personal opinions and respecting the beliefs of others.

 

Practical tips for Employers

 

Employees should be reminded that comments made on social media platforms can result in disciplinary action even when they are posted in a personal capacity.

Therefore it is important to clearly set out company expectations whilst online. This could be in the form of a Social Media Policy Document which all employees must adhere to.

Requirements could include:

 

  • Not citing the company logo when expressing personal views or opinions.
  • Affirm the expectation that employees be polite and considerate to others when using social media.
  • Not to post anything that may bring the company into disrepute or cause offence to others.
  • Inform employees of the potential for disciplinary action, should there be a breach of policy.

 

This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership

 

 

 

 

 

 

 

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