Workplace views on Transgenderism

It’s pride month, and here at Supportis HQ we celebrate our LGBTQIA+ colleagues, clients and contacts all year round. We believe allyship in and out of the workplace is so important as an antidote to isolation for those targeted by oppression. In the last few days a major decision has been released from the Employment Tribunal regarding workplace views on transgenderism, here we discuss the implications of this decision, which some have condemned as regressive…

In this article, we discuss the case of Maya Forstater v CGD Europe and others, in which the Appeal Tribunal has held that a person’s views on whether someone else can identify as a different sex and gender to the one they were assigned at birth (identifying as transgender) is a philosophical belief and therefore protected under s.10 of the Equality Act 2010.

Ms Forstater, the claimant, tweeted that people can’t change their biological sex, and questioned government plans to permit people to declare their own gender.

Subsequently her contract wasn’t renewed following investigation after complaints from multiple colleagues who were offended by her comments, that she defined as “material reality”.

The claimant complained that she was discriminated against due to her beliefs. The employment tribunal (ET) then held a preliminary hearing to work out whether her beliefs were a “philosophical” within the meaning of The Equality Act 2010.

The ET described her belief as absolutist, and said that her decision to “refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment”, was one that was “not worthy of respect in a democratic society”.

However, the EAT (appeal tribunal) found that Ms Forstater’s belief did fall into the 2010 Act.

The matter will now, the EAT ruled, be remitted to a freshly constituted ET to work out whether the treatment about which she complains was due to or associated with that belief. However, Mr Justice Choudhury made it clear that this judgment doesn’t mean that the EAT has expressed any view on the merits of either side of the transgender debate.

He also emphasised that the judgment doesn’t mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity and nor does it mean that businesses won’t be ready to provide a secure environment for transgender persons.

This EAT ruling has been described as a step backwards for inclusivity and equality for all.

HR implications

Although EAT rulings are binding, it’s still uncertain whether this decision are going to be appealed and whether a Court of Appeal will side with the ET or this recent EAT decision.

As was made clear by the EAT judge, the choice during this case doesn’t allow individuals the liberty to harass others who don’t share their “philosophical beliefs” – simply because a view is classed as philosophical doesn’t mean that individuals can’t be mindful of how they manifest those beliefs.

With that said, employers must be mindful of the difference between an employee having certain views, however offensive, and using those views to cause offence or to harass others. this might be the difference between a good and unfair dismissal or discrimination of the individual who holds the philosophical belief. Crucially, where cases like this are observed within a company, it should be thoroughly investigated and a thorough disciplinary, or grievance, procedure needs to be followed.

If you think your business would benefit from watertight policies, procedures and round the clock HR advice contact our friendly team today to see how we can help on 0161 603 2156.