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Is there protection for gender critical beliefs?

Employment Matters e-update – July 2022

Overview

Gender critical beliefs refer to the view that someone’s sex is a matter of biological fact and cannot change. Given that ‘gender reassignment’ is protected under the Act, how has the ET dealt with employees who hold gender-critical beliefs?

Mackereth v Department for Work and Pensions & anor

In this case, the Employment Appeal Tribunal (EAT) held that a Christian doctor’s belief that a person cannot change their sex and associated lack of belief in ‘transgenderism’ were both protected under the Act, but that he had not been unfairly dismissed for those beliefs.

Facts

Mackereth was recruited by the second respondent (Advanced Personnel Management Group) to work as a Health and Disabilities Assessor for the first respondent (Department for Work and Pensions (DWP)).

As part of his work, he was required to assess individuals who were contemplating, undergoing or had undergone gender reassignment. Mackereth was a Christian whose particular beliefs were at odds with this principle. He believed, in particular, a passage in from the Bible which reads “male and female He created them”.

Due to Mackereth’s beliefs he did not recognise “transgenderism”, “gender fluidity”, that a person can change their sex/gender or that “impersonating” the opposite sex would be beneficial for a person’s welfare.  Furthermore Mackereth considered that it would be irresponsible and dishonest for a health professional to accommodate or encourage a patient’s “impersonation”.

During Mackereth’s induction training he explained that he would not agree to use the preferred pronouns of transgender service users; this was required by the DWP’s policies.

It was explained to Mackereth that, due to his unwillingness to follow policy, that he would not be able to undertake a customer-facing role (a necessary part of Mackereth’s work). The DWP explored a non-customer-facing role as an option, however, Mackereth did not have the required experience.

The DWP could not ensure Mackereth only assessed non-transgender service users as they may not present as transgender until assessment.

Mackereth left employment and pursued claims for direct discrimination, harassment and indirect discrimination on the basis of the protected characteristic of religion or belief.

Decision

The ET dismissed Mackereth’s claims.

In reaching this decision, the ET considered that his beliefs were not protected under the Act.  In order to benefit from protection a belief must be genuinely held; relate to a weighty and substantial aspect of human life; attain a certain level of cogency, seriousness, cohesion and importance and be worth of respect in a democratic society.

Mackereth’s beliefs failed to satisfy the test and, going further, the ET said that even if the belief was protected, they did not consider that Mackereth had been less favourably treated or harassed as a result. Whilst the “provision, criteria or practice” (PCP) adopted by the DWP which required preferred pronouns to be used was capable of disadvantaging Christians, it was considered a proportionate means of achieving the DWPs legitimate aims of ensuring respect to transgender service users.

Mackereth appealed to the EAT.

The EAT said the ET’s approach to the required test was incorrect, particularly in their analysis of whether the belief was worthy of respect in a democratic society.  They said that the bar for this criterion is very low, specifically to allow for the protection of “minority beliefs” which are not widely held and may offend others. To qualify for protection, the belief need only “not have the effect of destroying the rights of others”.

They referred to the decision in the Forstater case (considered below), but recognised that due to timing the ET would not have had the benefit of that judgement at the time they made their decision.

The EAT accepted that Mackereth’s beliefs were likely to cause offence, but this did not mean they were automatically excluded from protection. In fact, they disagreed with the ET and held that his beliefs, and his lack of belief (in “transgenderism”) were to be treated as protected characteristics under the Act.

However, the EAT agreed with the ET that Mackereth had not suffered direct discrimination, indirect discrimination or harassment as a result of his beliefs (or lack thereof). Mackereth was not put under pressure to renounce his views, but only to clarify his position; the DWP had not made a decision as to whether to dismiss Mackereth and was investigating when he decided to resign.

Furthermore, the DWP’s conduct was not because of Mackereth’s beliefs, but instead was because it wanted to treat its service users as they wished to be treated. Anyone who was not prepared to treat service users in this way would have been treated the same way by the DWP, whether they shared Mackereth’s beliefs or not.

Forstater v CGD Europe and Others

In similar facts to Mackereth above, the claimant (Forstater) expressed gender critical beliefs during her time as a consultant for the respondent (CGD Europe) broadly that she did not agree that biological sex could be changed.

Facts

Forstater carried out consultancy work for CGD Europe. During her time there, she posted tweets which her colleagues described as “transphobic”. The tweets were gender critical in nature and made clear that Forstater’s opinion was that biological sex could not be changed..

After concerns were raised to CGD Europe by Forstater’s colleagues and an extensive internal discussion about her comments and how they interacted with CGD’s policies had taken place, Forstater was not offered any further work and her contract was not renewed.

Forstater brought an ET claim alleging direct discrimination and harassment because of her beliefs.

Decision

The ET was tasked firstly with determining whether Forstater’s belief was a qualifying “philosophical belief” under the Act and found that her beliefs were not worthy of respect in a democratic society given that they were “absolutist” i.e. she would refer to a person as she wished to, even if it violated their dignity. She appealed to the EAT.

The EAT held that the ET had erred. The tribunal was not concerned with the merits of Forstater’s belief itself, only whether it fell under the scope of protection in the legislation. They recognised the need to have regard to the rights enshrined in the European Convention on Human Rights (ECHR) such as freedom of expression and freedom of thought, conscience and religion.

As mentioned in Mackereth above, the EAT noted that the threshold for a belief to be “worthy of respect in a democratic society” was low – a belief might only fail to satisfy that criteria if it “was the kind of belief which would be akin to Nazism or totalitarianism”.

In essence, the EAT considered that the belief would need to pose an extremely grave threat to the ECHR principles and Forstater’s beliefs were not that.  Accordingly, they were entitled to protection under the Act.  Given the basis of the appeal, it was not for the EAT to consider the question of whether Forstater had been discriminated against or harassed as a result of these beliefs.  Instead, this question was remitted back to ET level for consideration by a differently constituted ET.

On the basis that Forstater’s beliefs were protected under the Act, the ET held that CGD Europe’s decision not to offer Forstater employment or renew her contract was taken because of her beliefs.

The ET considered that Forstater’s beliefs were not unreasonable despite the fact that they may offend some people. It was also not unreasonable to engage in debate about those beliefs on social media. Forstater’s engagement in that debate could not be separated from the beliefs themselves. CGD Europe’s decision therefore amounted to direct discrimination.

Impact

These two cases demonstrate that there is a delicate balance to be struck between respect for different and potentially competing protected characteristics under the Act.

The provisions of the Act ensure that those who have the characteristic of gender reassignment are protected, but also allow those with gender critical beliefs to hold, express (and in Forstater’s case) debate those views. However, the EAT has been careful, rightly, to stress that these kinds of judgements do not mean that those with gender critical beliefs can “misgender trans persons with impunity”.

Employers should consider what kind of workplace culture they wish to promote in attempting to strike this balance. To do so, it may be prudent to speak with employees to gather views which can then influence workplace policies and training. What kind of behaviour will or will not be tolerated should be clearly stated and understood by employees. It is important that all employees feel safe and respected at work, and failure to ensure this safety could lead to claims being raised in the ET by disgruntled employees.

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