Sex, gender and freedom of speech in the workplace – Building

In the recent case of Forstater vs CGD, the employment appeal tribunal (EAT) held that gender critical beliefs are protected under the Equality Act 2010. What does this mean for employers?

GCD decided not to renew Ms Forstaters fixed-term contract following complaints by colleagues about her comments on social media regarding proposed reforms to the Gender Recognition Act. These proposals (since dropped) would have allowed men to self-identify as women and vice versa. Ms Forstater said the decision not to renew her contract was discrimination on the basis of her gender critical beliefs: namely that biological sex is real, cannot change, and is not the same as gender identity. She claimed under the Equality Act 2010, which protects religious and certain other philosophical beliefs.

Ms Forstater initially lost in the employment tribunal. However, the EAT overturned that decision. Her appeal was supported by the Equality and Human Rights Commission and the free speech body Index on Censorship.

What is the difference between sex and gender identity in the workplace?

Under the Equality Act, the relevant protected characteristics are sex and gender reassignment. Gender reassignment applies to someone proposing to undergo, undergoing or who has undergone a process for the purpose of reassigning their sex by changing physiological or other attributes of sex. They do not need to undergo surgery or other treatment, and many do not.

Employers must not confuse sex with gender identity or gender reassignment. A persons legal sex does not change unless they have a gender recognition certificate (and even then not for all purposes).

The EAT noted the importance of free speech and diversity of thought and said that beliefs should be protected unless aimed at the destruction of others rights and freedoms for example, Nazi beliefs. It said that Ms Forstaters beliefs were not close to that threshold. On the contrary, it recognised her views are widely held, consistent with current law on sex and gender, and dont inherently damage the rights of trans people.

The EAT recognised that Ms Forstaters views may upset or offend some people, but said that does not make them unlawful. These comments are important for those with gender critical beliefs and more generally for future cases on a range of philosophical beliefs.

Employees with gender critical beliefs are protected from discrimination and harassment in the same way as those with religious or other protected philosophical beliefs, and other protected characteristics such as sex, race and gender reassignment.

The employment tribunal will now consider whether the non-renewal of Ms Forstaters contract was because of her belief or whether it was because of the way in which she manifested that belief and if so, whether it was discrimination. In practice, this is always highly case-specific.

The key points for employers are:

Employers should also note that in collecting diversity data the relevant question should be about sex, not gender, with the options of female, male and prefer not to say. An optional question on gender identity may be added but must not replace that on sex.

Rebecca Bull is a solicitor in private practice, and a director of Sex Matters

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Sex, gender and freedom of speech in the workplace - Building