Gender critical belief – finding of discrimination

Last year, the Employment Appeal Tribunal (EAT) found in the case of Forstater v CGD that “gender critical” beliefs are capable of protection under the Equality Act 2010. The EAT was only deciding on that aspect of the case, not on the merits of the claim. The question that followed this finding was how courts would, in practice, protect these rights whilst not infringing the rights of others in what is a very emotive area. We now have an indication of the approach the courts will take as the Forstater case returned to the Employment Tribunal (ET) earlier this year for a hearing on the merits and the decision was handed down this week. Additionally, the EAT handed down a judgement recently in a case dealing with similar beliefs, and we look at the contrasting outcomes.

Maya Forstater did not have her contract renewed at the think tank centre for Global Development in 2019 after she had posted a series of tweets which demonstrated that she believed sex to be immutable and should not be conflated with gender identity. She believes that trans women are transwomen, not women. The ET considered whether the tweets were a manifestation of her belief to which objection could reasonably be taken or an inappropriate manner of manifesting her belief. Having considered several of her tweets, they found they were not objectively unreasonable. The ET, therefore, found she had been discriminated against because of her beliefs in that she had not had her Visiting Fellowship renewed, nor been offered an employment contract.

In Mackereth v DWP, Mr Mackereth, a Christian doctor, asserted a biblical belief that people are created either male or female and cannot change their sex/gender at will. He also asserted a lack of belief in transgenderism. His role with the DWP was as a disabilities assessor of benefits claimants. As part of the induction process, he was told that he should use the preferred pronouns of transgender service users. He said he would not and resigned. His discrimination claims were dismissed by both the ET and EAT on the basis that whilst he was disadvantaged by having to use preferred pronouns because of his beliefs, this was a necessary and proportionate way of the DWP achieving its’ legitimate aims which were to ensure transgender service users are treated with respect and to provide a service that promotes equal opportunities.

What these cases demonstrate is that in a pluralist democratic society the protection of both minority and majority beliefs is important, even where some of those views may offend others. How individuals manifest those beliefs will be key in determining disputes going forward.