Belief that sex and gender at birth cannot be changed is capable of protection


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An employment tribunal has held in Higgs v Farmor's School that a Christian employee's beliefs that gender cannot be fluid and that an individual cannot change their biological sex or gender were capable of being protected beliefs under the Equality Act 2010 (EqA 2010).

The claimant is a Christian and was employed by Farmor's school as a pastoral administrator and work experience manager.  The head teacher of the school received an email from someone outside the school complaining about a Facebook post by the claimant which the complainant considered showed that she held homophobic views against the LGBT community.  The post related to the teaching in schools of same-sex relationships, same-sex marriage and gender being a matter of choice.  The claimant was dismissed for gross misconduct, following an investigation and disciplinary hearing, for breaching the school's conduct policy, including in relation to discrimination and serious inappropriate use of social media.  She brought a claim for discrimination on the grounds of her religion. 

The tribunal held that her beliefs that gender cannot be fluid and that someone cannot change their biological sex or gender were protected beliefs under the EqA 2010, but that she had not been directly discriminated against or harassed because of those beliefs.  It held that the action taken by the school against the claimant was motivated by a concern that because of her Facebook posts, she would be perceived as holding unacceptable views in relation to gay and trans people.  The action taken was not on the ground of the claimant's beliefs, but because her actions meant that she might be reasonably perceived as holding beliefs that did not qualify for protection under the EqA 2010.

Take note: The decision in Higgs conflicts with that in Mackereth v Department for Work and Pensions and anor where a Christian doctor's belief that God only created males and females and that a person can't choose their gender was held to be incompatible with human dignity and conflicted with the fundamental rights of others.  This meant, in contrast to Higgs, that it could not be a protected belief.  Mackereth has been appealed to the Employment Appeal Tribunal, and it seems that the decision in Higgs may well be appealed too, so hopefully clarity will be reached on whether the beliefs held by the respective claimants are capable of protection under the Equality Act 2010 or not.

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