Two more rulings concerning claimants with gender critical beliefs

This week Maya Forstater succeeded in some but not all her claims against the think tank CGD Europe. There have also been further developments in the appeal being brought by Kristie Higgs against the employment tribunal’s dismissal of her claim against Farmor’s School. This follows last week’s EAT’s ruling involving Dr Mackereth (see our blog here).

All these claims have required the employment tribunal to balance claimants’ rights in relation to their protected beliefs against the rights of others (typically their work colleagues and employers). In all of them the tribunal has emphasised that it is not its role to express any view on the merits of the various gender critical beliefs which it has had to scrutinise as part of its decision-making process.

The employment tribunal’s decision in Forstater runs to over 80 pages, and the EAT’s decision in Higgs is also extensive. We don’t have space in this blog for a detailed analysis of either decision, but believe that setting these two recent decisions alongside Mackereth will help employers to assess their broader implications.

Protection for gender critical beliefs

Firstly, and perhaps most importantly, both gender critical views and opposing opinions are likely to qualify as protected beliefs. That means that the Equality Act’s anti-discrimination provisions are likely be engaged if there is a difference of opinion about whether it is appropriate to voice these views, whether in the workplace or on social media.

In Forstater the tribunal’s key finding was that the employers had directly discriminated against Ms Forstater because of her protected beliefs in deciding not to offer her an employment contract and not to renew her visiting fellowship.

In Higgs the latest round of litigation is about the composition of the EAT panel which will hear an appeal against the employment tribunal’s finding that her employers had not directly discriminated against her when they dismissed her after posting items on Facebook.  These were posts that in the view of the tribunal “might reasonably lead people who read her posts to conclude that she was homophobic and transphobic.”

The EAT’s ruling in Mackereth. on the other hand, primarily focuses on the potentially indirectly discriminatory effect of a policy which required Dr Mackereth to refer to trans service users with their preferred pronouns and which he said conflicted with his beliefs about the immutability of gender. In this case the EAT confirmed the tribunal’s ruling that the employer’s justification defence had been made out.

The dividing line between a belief and its expression

We have known for a long time that the distinction between a belief and its expression (or manifestation, to use the technical legal term) can be hard to draw.  But the distinction is often critical to the way claims based on the protected characteristic of religion or belief are adjudicated.

For example in dress code cases, there is a distinction between policies that “attack the veil” in a way that is hostile to Muslims, and policies that are based on a cogent position on the need for neutrality in particular workspaces on matters of religion. Policies in the former group are likely to be directly discriminatory, while those in the latter are potentially indirectly discriminatory, but likely to be justifiable as a proportionate means of achieving a legitimate aim.

A reading of the thoughtful and thorough decision in Forstater illustrates just how difficult it is to make this distinction when it comes to gender critical beliefs, given that many people find these beliefs inherently offensive. The tribunal went through all of the tweets made by Ms Forstater about her beliefs that were drawn to its attention and reached the conclusion that none of them were “objectively offensive or unreasonable” in the way they were expressed, though in one instance this decision was not unanimous. This appears to have been the main reason why the tribunal rejected the employer’s argument that the decisions adverse to her were not made because of her beliefs, but the way that she expressed them.

Conclusions

There is a lot to learn from these decisions, but none of them offer any easy solutions.  It will take a while before the law settles down. While it does, employers will need to tread carefully because these decisions have highlighted how fact sensitive and complex it is to mitigate risks of successful claims being brought. We are waiting for a substantive ruling from the EAT in Higgs and it is possible that the employers will appeal in Forstater.

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