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There are workplace protections for people who identify as transgender in both the UK and Australia. In this series of articles, we will look at the tension employers face between these protections in the context of competing interests such as, in the UK, religious or philosophical beliefs and, in Australia, the implied right of freedom of political communication and anti-discrimination provisions for religious beliefs. Here, we briefly review the situation in the UK.
Current position
Although gender reassignment has been covered as a protected characteristic under the Equality Act since its introduction in 2010 (and, prior to that, was covered to a lesser extent under the Sex Discrimination (Gender Reassignment) Regulations 1999), it has recently become the subject of a number of high-profile Tribunal claims which have highlighted the difficulty that can exist in balancing the rights of different protected groups.
The Equality Act 2010 (EqA) sets out nine characteristics which are protected from discriminatory conduct in various situations, including in the workplace (which extends to job applicants).
One of these protected characteristics is protection on the grounds of gender reassignment, although it is generally recognised that this term is now somewhat outdated with the preferred term now being ‘trans’. This protection applies to an individual who is “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing a physiological or other attributes of sex”.
There is no requirement for an individual to have undergone any surgery or be subject to any medical supervision in order to meet the definition of gender reassignment.
The protections
Where an individual is covered under the gender reassignment protection afforded by the EqA, they have the right not to be subjected to:
- Direct discrimination: i.e., where they are afforded less favourable treatment because of their protected characteristic, e.g., where an individual is not promoted because they are undergoing gender reassignment.
- Indirect discrimination: i.e., where a workplace policy or practice, applicable to all staff, places people with the particular protected characteristic at a disadvantage and the employer cannot show the particular practice in question can be justified.
- Harassment: i.e., where an individual is the recipient of unwanted conduct related to their gender reassignment which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Therefore, comments intended to be jokes, made without any intention to cause offence can still amount to harassment if they resulted in an individual feeling humiliated or degraded.
- Victimisation: i.e., where an individual is subjected to a detriment because they have previously done, or are believed to have done, a protected act or it is believed that they may do a protected act in the future. A protected act includes having previously brought a claim or grievance alleging discrimination due to gender reassignment or having given evidence in any such proceedings.
However, a number of recent cases have highlighted the potential for the protection afforded under the EqA on the grounds of gender reassignment to conflict with the protection afforded for another protected characteristic - religious or philosophical belief.
Recent relevant case law
The recent case of Forstater v CGD Europe [06.07.22] specifically considered whether an individual’s view that sex is biologically unchangeable was capable of amounting to a philosophical belief and so attracting protection under the EqA. In this case, a visiting fellow at an international think tank widely shared her views on gender reassignment on social media which resulted in a number of complaints. In light of these complaints, CGD Europe made the decision not to renew Ms Forstater’s contract.
At first instance, the Employment Tribunal (the Tribunal) found this did not amount to a philosophical belief, specifically finding that such a view was not worthy of respect in a democratic society and conflicted with the fundamental rights of others and, as such, could not satisfy the test to amount to a philosophical belief. However, this decision was overturned by the Employment Appeal Tribunal (EAT) who held that the gender-critical belief was widely shared and that, although the views could be deemed offensive to some, they were worthy of respect and so covered under the EqA.
The matter was then remitted to the Tribunal to determine Ms Forstater’s claims for discrimination due to philosophical belief. The Tribunal found that the decision of CGD Europe not to renew Ms Forstater’s contract was an act of direct discrimination. In reaching its decision, the Tribunal considered the difference between holding a belief and the expression of that belief and it focused on whether Ms Forstater had manifested her views in a manner which was objectionable or unreasonable. It ultimately held that she had not and that the non-renewal of her contract due to her expression of her views was therefore an act of direct discrimination.
In Allison Bailey v Stonewall Equality Limited and others [27.07.22], Ms Bailey, a barrister, brought a claim against her barristers’ chambers and Stonewall, a charity which promotes the rights of the LGBTQ+ community. Specifically, Ms Bailey alleged that she had been discriminated against due to her gender-critical belief, expressed in a number of Tweets, that women are defined by their biological sex and not by their gender which may differ from their sex, and because of views she held about a campaign run by Stonewall about gender self-identification which she deemed to be detrimental to women.
The Tribunal found that both beliefs relied upon by Ms Bailey were protected under the EqA as philosophical beliefs. In respect of Ms Bailey’s views towards Stonewall, the Tribunal noted that in finding that the belief was protected under the EqA that did not mean that the Tribunal considered Ms Bailey was right on the issue. Instead, the Tribunal stated that “expressing hostility towards Stonewall campaigning on the basis of gender self-identity did not seek to destroy the rights of others in a way that would not be worthy of respect in a democratic society. It was part of the “dust and heat” generated by the conflict of opinion that must nonetheless be tolerated to avoid the greater evil of censorship”.
As in the earlier Forstater case, the Tribunal found that, where a claim relates to the way in which a belief is manifested rather than the belief per se, a Tribunal has to consider whether the belief was appropriately or inappropriately manifested and it specifically noted that “belief need not only be expressed nicely in a democratic society”.
Whilst the claims against Stonewall did not succeed, the Tribunal ultimately found in this case that Ms Bailey was subjected to both discrimination and victimisation by her chambers due to her beliefs.
Comment
These cases provide a snapshot of the growing difficulties faced by employers in managing and balancing the conflicting rights of their employees.
Employers are advised to ensure they have appropriate and up-to-date policies in place on issues including equality and diversity and the use of social media and that these policies are actively briefed to employees. Whilst such policies are important to clearly communicate that all individuals are to be respected and treated equally and to highlight the standard of conduct expected by the employer, they are also increasingly important in a wider context to help demonstrate employers’ commitment to Environmental, Social and Governance (ESG) issues of which diversity and inclusion forms a key part.
When dealing with disputes in the workplace, employers should take a considered and balanced approach and avoid acting hastily in response to comments they may themselves find objectionable. It is clear that each case will turn on its own particular facts and that much will depend on the manner in which particular views or beliefs are expressed. There is likely to be further case law on these issues over the next few years with an increased focus on the balancing exercise to be carried out where the expression of one individual’s protected belief conflicts with the protections afforded to others.
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