Discrimination for expression of ‘gender critical’ beliefs

Direct discrimination occurs where a person is treated less favourably than others are treated, or would be treated, because of a protected characteristic. There are nine protected characteristics under the Equality Act 2010, including religion or belief.

We reported last year on a case in which the Employment Appeal Tribunal (EAT) had found that a ‘gender critical’ belief is a philosophical belief and as such is protected under the Equality Act 2010. It was then for the Employment Tribunal to consider whether there had been discrimination because of that belief.

The claim

Ms F was a Visiting Fellow of CGD, a not-for-profit think tank. Ms F holds the belief that biological sex is real, important, immutable and not to be conflated with gender identity. She expressed her beliefs about issues of sex and gender identity on social media, including tweeting that “people should of course be able to define their identity any way they like but other people are not compelled to accept it as relating to any material reality”; that “a man’s internal feeing that he is a woman has no basis in material reality”; and that “men cannot change into women.”

Colleagues of Ms F expressed concerns about some of her tweets, including concerns that they were transphobic. Ms F was asked to add a disclaimer to her tweets, stating that all tweets and views were her own, which she agreed to do. A report was produced into the issues arising in relation to Ms F’s expression of her beliefs, without Ms F’s involvement. Ms F subsequently stated that while she stood by the content of her tweets, she had decided to tweet less on the topic on her main Twitter account; and that she would not initiate discussions with colleagues about sex and gender issues.

Ms F’s Fellowship was not renewed, and she was not offered a contract of employment. She issued claims in the Employment Tribunal, including of direct discrimination and victimisation. She claimed that the non-renewal of her contract and the failure to offer her employment amounted to direct discrimination on the grounds of her beliefs.

Direct discrimination for expression of ‘gender critical’ beliefs?

As the Tribunal pointed out, there is a distinction between holding a protected belief and expressing or manifesting that belief. In particular, a distinction between:

cases where the reason for less favourable treatment is the fact that an individual holds or manifests a protected belief; and
cases where the reason for less favourable treatment is that the individual had manifested that belief in a way to which objection could justifiably be taken. In those cases, it is the objectionable manifestation of the belief (not the belief itself) which is treated as the reason for the act complained of.

The Tribunal found that Ms F’s tweets were a substantial part of the reason why she was not offered employment. The Tribunal also found that the decision not to renew her Visiting Fellowship was because of Ms F’s belief. It went on to consider whether Ms F’s manifestation of her belief was such that objection could reasonably be taken to it, by reference to the overall picture. It found that this threshold had not been reached.

The Tribunal noted that it would be an error to treat a mere statement of a protected belief as inherently unreasonable or inappropriate. In this case, the Tribunal considered that although individuals might be offended by her statements, Ms F’s tweets were straightforward statements of her protected belief and were little more than an assertion of that belief. They were not objectively unreasonable or an inappropriate manifestation of her belief. In some cases, Ms F’s tweets had been mocking those who do not share her belief, but the Tribunal found that, as mockery goes, they were “fairly mild examples”. It went on to note that mocking or satirising the opposing view is part of the “common currency of debate” and in this case, was not offensive or unreasonable.

The Tribunal concluded that the decision not to renew Ms F’s status as Visiting Fellow or offer her a contract of employment was direct discrimination. A number of Ms F’s complaints of victimisation were also upheld.

Comment

This is a Tribunal level decision, and so is not binding on other Tribunals. However, it illustrates the principle that protection from discrimination for holding protected beliefs extends to the expression of those beliefs. This could include engaging in debates on social media. Expressing a ‘gender critical’ belief is not inherently unreasonable or inappropriate even if some people are offended. In this particular case, the expression of that belief was found not to be inappropriate or unreasonable.

Forstater v CGD Europe and others

19 July 2022

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