You’ve no doubt noticed that gender is a hot topic at the moment. Transgender stories seemingly appear in the media every day. You might also know there’s a famous employment law case which has recently shed light on the answer to the question in the headline. There’s more on that below, as well as another real-life example.
Protected characteristics
In law, precise definitions of terms make all the difference, and certain characteristics are defined as protected under the Equality Act 2010. These include:
- Age
- Disability
- Gender reassignment
- Marriage or civil partnership
- Pregnancy and maternity
- Race
- Religion or belief
- Sex
- Sexual orientation
You might agree that most of the protected characteristics are things an individual can’t change, while some of them are in more of a ‘grey area’ (we use that term ironically, especially considering the rainbow flag!)
This article explores some of the issues more deeply.
Philosophical beliefs in law
First, let’s look at what makes a philosophical belief in law.
Since the 2009 case of Grainger plc and others v Nicholson (in which it was decided that a belief in man-made climate change counts as a philosophical belief), the Employment Appeal Tribunal has identified key criteria which need to be satisfied to make a belief protected in law.
- The belief must be genuinely held
- It must be a belief not an opinion or viewpoint based on the present state of information available
- It must relate to a weighty and substantial aspect of human life and behaviour
- It must attain a certain level of cogency, seriousness, cohesion and importance
- It must be worthy of respect in democratic society and not incompatible with human dignity or the fundamental rights of others
- It must have a similar status or cogency to a religious belief
- It need not be shared by others
- It may be a political philosophy or doctrine
- It may be based on science
What about gender-critical beliefs?
Case study 1
It’s complicated, as shown by the case of Forstater v CGD Europe and others.
Maya Forstater is a consultant, researcher, writer and adviser on sustainable development. From November 2016, she worked at CGD Europe, a not-for-profit think tank focused on international development.
She holds the belief that there are only two sexes, male and female, and that it’s not possible to change from one to the other even if a Gender Recognition Certificate is obtained, and she would share those views publicly. For example, on Twitter, she would refer to a person by the sex she considered appropriate even if the person concerned felt that to do so violated their dignity.
A number of her colleagues alleged that some of Maya’s tweets were “transphobic”, “exclusionary or offensive” and made them feel “uncomfortable”.
As a result, in October 2018, her contract was not renewed.
So, in 2019, she went to the Employment Tribunal alleging direct discrimination and harassment and arguing that her gender-critical opinions amounted to a philosophical belief.
The Employment Tribunal that first heard the case found her views were incompatible with human dignity and not worthy of respect in a democratic society (you’ll notice this goes back to the criteria listed above).
In 2021, she took her case to the Employment Appeal Tribunal which overturned this decision. The EAT said that the only beliefs not worthy of respect in a democratic society would be more extreme, such as those advocating Nazism or Totalitarianism and the gravest forms of inciting hatred and violence.
Even though Maya’s beliefs might be offensive, shocking or disturbing to some, the EAT determined that her views, which it found were were widely shared, and which did not seek to destroy the rights of trans persons, did not fall into that category. Her gender-critical beliefs were therefore found to be protected under the Equality Act (this is also in line with previous case law).
The EAT stressed that the judgement doesn’t mean that anyone with gender-critical beliefs can misgender trans-people with impunity. Employees must not deliberately upset or incite other employees. They also said their ruling was not about taking ‘sides’ with regard to transgender people, but as a point of law – that is, the exact meaning of the criteria.
Case study 2
A similar situation arose in the case of Mackereth v The Department of Work and Pensions and Advanced Personnel Management Group UK Ltd.
Dr David Mackereth was a Health and Disabilities Assessor. As a Christian, he believes in the truth of the Bible, and has a lack of belief in, and conscientious objection to, transgenderism.
As a result of his beliefs, he said he couldn’t in good conscience use the pronoun of a person’s choice, as the DWP required, when referring individuals who were contemplating, undergoing or had undergone gender reassignment.
David alleged he had been discriminated against on the grounds of his religious beliefs. The Employment Tribunal found that his beliefs were incompatible with human dignity and conflicted with the fundamental rights of others and were therefore not worthy of protection.
On appeal, the decision was that he had not been discriminated against but his lack of belief in transgenderism was a belief worthy of protection under the Equality Act 2010.
What this means to you
The European Convention on Human Rights (ECHR) includes Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression). So law is also in place to allow people to think and say what they believe.
There’s therefore a fine balance between a person’s right to express philosophical beliefs which you don’t agree with, and your right not to be harassed, victimised or discriminated against because of a protected characteristic that you identify with.
Ideally, your employer should create a culture and environment which tolerates opposing beliefs and encourages freedom of speech while ensuring people with protected characteristics are not harassed or discriminated against.
If you’ve been mistreated or discriminated against at work, let us know. This is one of our main areas of expertise and we’ll be happy to help. The first conversation is free, and with no obligation. So we look forward to speaking to you soon.
Related reading
For more on this subject, please see our related articles:
- Transgender discrimination. A hot potato
- Are you transgender and suffered discrimination?
- Can I claim for transgender discrimination?
- Religious or philosophical belief discrimination
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