Employer Latest Know-How: Transgenderism in the Workplace

Claire Thorogood of Punter Southall Law discusses transgenderism in the workplace

When a Court judgment opens with the words - “We recognise that this case may touch on issues of wider social concern and debate. We make clear that we express no views as to the merits of any side in that debate….” - one might guess that the case concerns transgender issues.

Hardly a week goes by without the issues of sex and gender making news. Macy Gray’s comments earlier this week prompted allegations of transphobism.  

On one side, the gender critical view is that sex is immutable – human beings cannot change sex - and is distinct from gender identity. JK Rowling has become a figure head for this group (and supported Macy Gray). On the other side, people regard a trans woman as simply a woman.   Among others, Emma Watson sits on this side of argument with the LGBTQ+ Charity, Stonewall.   It is a highly charged and polarised ‘debate’.   

Last month, this issue was once again considered in the employment context by the Employment Appeal Tribunal (EAT) in a case involving a Christian doctor, Dr Mackereth. It came a year after another case concerning transgenderism was brought by an academic, Maya Forstater, to the same Court. In both cases, the EAT had to rule on whether a gender critical view was a belief protected under the Equality Act as a philosophical belief. If it was, individuals could assert rights – such as the right not to suffer discrimination or harassment – based upon that view.  

Pronoun Polemics

In both cases, the EAT considered the use of preferred pronouns and ‘misgendering’. In the case of the doctor, he made clear to his employer that he felt that his Christian belief prohibited him from using a trans person’s preferred pronouns if it differed from their natal sex. In the case of Ms Forstater, she argued that whilst in social situations she would use preferred pronouns and “not hurt anyone’s feelings”, she should not be compelled to be polite or kind in every situation such as in female-only spaces.    

In the first instance, both individuals failed in their arguments. Lower courts ruled that their gender critical views could not be a protected philosophical belief because they were incompatible with human dignity. In the case of the doctor, the court ruled that it was a fundamental right for transgender individuals to be referred to by their chosen gender.

Rights & Freedoms

On separate appeals, the EAT overruled those judgments. Its legal analyses scrutinised rights and freedoms – under the Equality Act but also under the Human Rights Act (incorporating the European Convention on Human Rights) and, in particular, an individual’s fundamental rights to freedom of thought and to freedom of expression. In fact, in both cases the EAT made clear that there is a low threshold for a belief to qualify for protection because these freedoms are the essential foundations of a democratic society:

• “The freedom to hold whatever belief one likes goes hand in hand with the State remaining neutral as between competing beliefs …and ensuring that groups opposed to one another tolerate each other”.  
• “To maintain the plurality that is the hallmark of a functioning democracy, the range of beliefs and convictions that must be tolerated is very broad”.

The EAT stated clearly that (a) the fact that a belief is likely to cause offence cannot mean that it is excluded from protection and (b) the gender critical view does not seek to destroy the rights of trans persons.

Only if a belief has the effect of destroying the rights of others will it be denied protection and this was a high bar: the examples were Nazism and totalitarianism.  

Manifestation

Accordingly, as individuals, we are free in a democratic society to hold any belief we wish.   However – how one manifests a belief – is a separate issue. Our freedoms of thought and expression need to be balanced against the rights and freedoms of others.  

So, whilst there was no blanket restriction on Dr Mackereth or Ms Forstater holding and expressing gender critical views – (even if that caused offence) – the EAT was at pains to make clear that its decisions did not give licence for people with gender critical views to “misgender trans people with impunity”. Trans persons’ rights are protected under the Equality Act.    

Legal Protection for Trans Individuals

“Gender reassignment” is a protected characteristic under the Equality Act and a trans person does not have to be undergoing any medical process (or have been through one) to benefit from the protection afforded by the Act. Reassignment in the context of the Act is about undergoing a personal rather than a medical journey and an individual can be at any stage of that process.  

Currently, non-binary genders are not recognised in UK law (and the Government has indicated that this is unlikely to change). However “gender fluid”/”non-binary” genders were judged by an Employment Tribunal to be protected under the Equality Act in the landmark Jaguar case in 2020 on grounds that the protected characteristic of “gender reassignment” anticipated protection for individuals throughout the journey away from their birth sex (and not just for those arrived at their destination) and that no two journeys are ever the same.

Outcomes

Last month, Dr Mackereth failed in his discrimination claim. He had alleged that the end of his employment resulted from discrimination based upon his gender critical beliefs. His beliefs were protected but he was unable to show that he had been discriminated against because of them.  

Earlier this week, Ms Forstater won her claim of discrimination and victimisation. She had alleged that she had lost work as a direct result of her gender critical tweets. The Tribunal agreed and observed that “mocking or satirising the opposing view is a part of the common currency of debate”.    

Employers can assume that these issues are likely to become more prevalent in the workplace – particularly issues concerning the manifestation of protected beliefs and competing rights and freedoms - and having a good grasp of the law reflected in their policies, training and practices will be essential.  In the Forstater case, the EAT issued a warning: employers continue to be liable for acts of harassment and discrimination against trans people committed in the course of employment.