Gender Beliefs at Work | Denton
The first half of July saw two interesting decisions on the issue of managing gender beliefs in the workplace. In one case, an employment tribunal ruled that refusing to offer someone a job because of their sexist beliefs is direct discrimination. Meanwhile, in a separate case, the Employment Appeal Tribunal (TO EAT) ruled that a Christian doctor had not been discriminated against for refusing to address transgender people by the chosen pronoun.
Forstater c. CGD Europe and others
Maya Forstater worked as a consultant for the Center for Global Development Europe (CGDE), the European branch of the Center for Global Development (CGD), a Washington-based think tank.
Ms. Forstater believes that biological sex is real, important, immutable and should not be confused with gender identity. She considers statements such as “women means adult human female” or “trans women are men” to be statements of neutrality and not expressions of antipathy towards trans people or “transphobes”. Ms. Forstater has participated in social media debates on gender identity issues. She also left a gender-critical campaign booklet in the office. Following government consultation on amendments to the Gender Recognition Act in 2018, Ms Forstater tweeted: ‘I don’t think people should be forced to play with literal delusions like trans women are women’ and “radically expanding the legal definition of ‘women’ so that it can include both men and women makes it a meaningless concept and will undermine women’s rights and the protection of vulnerable women and girls”. Some CGD staff members complained that Ms Forstater’s tweets were transphobic, exclusive, offensive and made them feel uncomfortable CGD launched an investigation into the tweets and decided not to renew Ms Forstater’s contract .
Ms Forstater applied to the Labor Court (HEY) against the CGDE, the CGD and its president, Mr. Ahmed, alleging that she had been the direct victim of discrimination and harassment because of her gender-based beliefs, claiming that her beliefs, namely that there is only two sexes (male and female) and that it is impossible for a person to change sex, are philosophical beliefs which must be protected by equality law.
Could Ms. Forstater’s gender beliefs be protected?
In an initial hearing, the ET considered whether Ms Forstater’s beliefs could be characterized as “philosophical beliefs” using the Grainger criteria, which provide that:
- the belief must be sincerely held;
- the belief need not simply be an opinion or point of view based on the current state of available information;
- the belief must relate to an important and substantial aspect of human life and behavior;
- the belief must reach a certain level of force, seriousness, cohesion and importance; and
- the belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
While the ET found that Ms Forstater’s beliefs did not meet the fifth criterion because her views were “absolutist” and “unworthy of respect in a democratic society”, the Labor Appeals Court held that the Ms. Forstater’s convictions deserved to be protected. The EAT held that while a belief such as Ms. Forstater’s could be considered offensive, hateful or even distressing, Ms. Forstater’s statements did not seek to destroy the rights of trans people and that her beliefs should be tolerated in a pluralistic society. The manifestation of one’s beliefs may be restricted, but the focus should be on the belief itself, not its manifestation. The EAT examined Articles 9 (freedom of thought, conscience and religion) and 10 (freedom of expression) of the European Convention on Human Rights (ECHR) which afford protection to the diversity of thought and Believes. The EAT found that Ms. Forstater satisfied the fifth Grainger criterion which has a low threshold to be met and that only opinions close to Nazism or totalitarianism should be considered unworthy of protection under Articles 9 and 10 of the ECHR.
The EAT stressed that the role of the courts is not to decide which beliefs are most acceptable, but to remain neutral and ensure that groups opposed to each other tolerate each other.
Did CGD unlawfully discriminate against Ms. Forstater?
The ET then had to decide whether Ms Forstater had been unlawfully discriminated against because of her protected belief. The ET found that CGD directly discriminated against Ms Forstater because of her gender beliefs by not renewing her scholarship and removing her from its website.
The ET acknowledged that Ms Forstater was legitimately entitled to criticize people with opposing views and that the fact that her statements may be offended is not enough to strip her of legal protection. The ET then concluded that none of the manifestations of Ms. Forstater’s beliefs, individually or collectively, were objectively offensive or unreasonable. This decision was unanimous except in one case where the decision was taken by majority. Moreover, it was not true that crossing the line on one occasion would have been sufficient to warrant action against him.
EAT: A Christian doctor who is not discriminated against for refusing to address transgender people by the pronoun they have chosen
Contrary to ET’s decision in Forstating, we have the recent EAT ruling that a Christian doctor was not discriminated against for refusing to address transgender people by their chosen pronoun. The Doctor adhered to the principles of the Great Reformation of the 16th century, including a commitment to the supremacy of the Bible as the infallible and infallible word of God. The doctor had been hired to carry out health and disability assessments. The problem had not arisen in practice, but the doctor indicated during the training that because of his beliefs, he objected to the use of pronouns or titles that did not correspond to the birth sex of a service user.
The reason the Doctor failed, where Ms Forstater succeeded, was that the EAT felt it was possible to separate the Doctor’s beliefs from the way he wished to manifest them. The original court found that two provisions, criteria or practices (PCP) had been applied to the doctor (requiring assessors to use the preferred pronouns and form of address of service users, and to confirm willingness to adhere to them) and that there was a collective disadvantage for Christians in the application of these PCPs. The EAT upheld the original tribunal’s decision that PCPs were a necessary and proportionate means of achieving the goal of treating transgender service users with respect. They were therefore not unlawfully discriminatory. Alternatives to accommodate the physician’s beliefs had been considered, but none were practicable.
What do these cases mean for employers?
The Forstating The case is seen as a landmark by some commentators, saying that people are generally able to hold and freely express their beliefs in the workplace and express them in discussion or respectful debate, unless it smacks of Nazism or totalitarianism. The judgment shows that a wide range of beliefs are protected by equality law and that it is not for a court to decide whether a belief is acceptable. It is important to remember that this is only a first instance decision and that CGD can appeal. This judgment has garnered a lot of media attention and speaks to the passion and high-stakes importance that each side of the debate places on cases that explore beliefs about gender.
In a diverse workforce there will naturally be different beliefs and therefore employers need to take a sensitive approach and deal with differing opinions consistently. It is more important than ever that employers train their staff to respect each other’s views, beliefs and opinions and to promote diversity in the workplace.
For employers, knowing where to draw the line is a challenge, as individual cases are very fact-sensitive. For this reason, drawing general conclusions from the case law, for example that it is acceptable for an employee to say “trans women are men” (as in the case of Ms. Forstater), but that the use of a service that mistakenly crosses the line (as in the case of the Christian doctor) ignores the context behind those decisions. Employers should therefore seek advice before taking action against employees (such as disciplinary action, not renewing their contract or dismissing them) for expressing their beliefs. There is a risk that by doing so, the employer will be found guilty of discriminating against or harassing the employee. That said, employers must create a safe work environment free from harassment and discrimination, so that while beliefs such as Ms Forstater’s may be protected in the workplace, the manner in which those beliefs are manifested may be restricted (for example, this does not mean that employees may ignore trans people).