Gender critical beliefs seem to be the topic of the moment, and there have been a number of other decisions this month in addition to that in Mackereth v Department for Work and Pensions.
Last year the Employment Appeal Tribunal (EAT) held in Forstater v CGD Europe and ors that Ms Forstater's gender critical belief was a philosophical belief which qualified for protection under the Equality Act 2010 (EqA 2010). The issue of whether or not CGD's actions amounted to discrimination against her has recently been considered, with the tribunal concluding that they did.
Ms Forstater was a visiting member of a not-for-profit think tank, CGD, focussing on international development, and her fellowship was not renewed. In looking at the reason why CGD decided not to continue Ms Forstater's fellowship, the tribunal held that her tweets and other ways in which she had manifested her gender critical beliefs had had a significant influence on the decision. The question then was whether she had manifested her beliefs in an inappropriate manner. A mere statement of a protected belief will not be inherently inappropriate and the tribunal found that none of the manifestations of Ms Forstater's belief, taken individually, were objectively offensive or unreasonable.
Interestingly, the tribunal found that it was not necessarily the case that crossing the line on a single occasion into inappropriate expression would have been sufficient to justify action being taken against Ms Forstater. It also accepted that mocking or satirising an opposing view (she had mocked those not sharing her beliefs, saying "What I am so surprised at is that smart people who I admire…are tying themselves in knots to avoid saying the truth that men cannot change into women") is part of the "common currency of debate" and should therefore be protected to a certain degree.
The decision in Forstater shows that, what is important when analysing whether or not a belief has been manifested in an inappropriate manner is looking at the individual's conduct as a whole, rather than looking at a single inappropriate manifestation.
Meanwhile the EAT has ordered the recusal of a lay member from an appeal involving consideration of gender identity issues in Higgs v Farmor's School.
The appeal is being heard against the tribunal's decision in Higgs 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. The lay member who was due to hear the appeal had forcefully and publicly expressed their opposition to gender critical views on Twitter which meant that there was a risk of bias.
Finally, an employment tribunal has held in Bailey v Stonewall and others that a barrister with gender critical philosophical beliefs was discriminated against by her chambers, Garden Court. Her claim that Stonewall had instructed, caused or induced her chambers to discriminate against her was unsuccessful.
The tribunal found that Ms Bailey's belief that a woman is defined by her sex and not by her gender (which can be self-identified and may be different to her sex) was a protected belief. Her belief that gender theory, as proselytised by Stonewall is severely detrimental to women (including that it denies them female-only spaces) and to lesbians (in that it labels them as bigoted for being same-sex attracted) was also protected.
Garden Chambers, a Stonewall "Diversity Champion", had publicly tweeted that it would launch an investigation into complaints about Ms Bailey, and was held to have directly discriminated against her on the grounds of her protected beliefs.
Take note: It is clear from these decisions (although it's worth noting that the appeal in Higgs has yet to be heard) that the expression of a gender critical belief is likely to be protected, however this does not mean that trans persons do not have protection against discrimination and harassment. Following Forstater, when considering the manifestations of a belief the tribunal will look at whether it is inappropriate and will take into account the individual's conduct as a whole.
