Gender identity is a divisive issue with strong and polarised views on each side of the debate, as can be seen from the UK government’s recent blocking of the Gender Recognition Reform (Scotland) Bill.

Dealing with gender identity in the workplace can be a delicate issue and one where employers have to consider the needs of, and legal protection afforded to, two different groups of individuals:

• those protected from discrimination under the Equality Act 2010 (EqA) on the basis of gender reassignment; and
• those with gender-critical beliefs.

Gender-critical beliefs 

Gender-critical beliefs include the belief that someone’s sex – i.e. whether they are male or female – is biological and unchangeable and that sex is distinct from gender-identity. Whether gender-critical beliefs are protected under the EqA has been the subject of an increasing number of tribunal claims.

What is a protected belief?

It is unlawful to discriminate against someone because of religion or belief. A belief is defined as any religious or philosophical belief (or lack of belief) but the EqA does not define these concepts further.

However, guidance given by the Employment Appeal Tribunal (EAT) in Grainger plc v Nicholson identified five criteria, which must be met if a belief is to qualify as a philosophical belief and therefore gain protection under the EqA:

• The belief must be genuinely held.
• It must be a belief and not, simply, an opinion or viewpoint based on the present state of information available.
• It must be a belief as to a weighty and substantial aspect of human life and behaviour.
• It must attain a certain level of cogency, seriousness, cohesion and importance.
• It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

The decision in Forstater v CDG Europe considered whether gender-critical beliefs met these criteria.

Forstater v CDG Europe

Maya Forstater had posted several tweets and had had discussions with another member of staff where she expressed her belief that sex is immutable and not to be conflated with gender identity. Ms Forstater also expressed her opposition to the changes being made to the Gender Recognition Act 2004 (GRA) that would allow trans people to achieve legal recognition of their acquired gender based only on self-identification. As a result, her employer did not renew her contract.

Ms Forstater brought claims for discrimination and victimisation, which initially failed on the basis that her beliefs did not satisfy the fifth of the Grainger criteria.

On appeal, the EAT held that Ms Forstater’s beliefs were in fact “worthy of respect in a democratic society” and were therefore protected by the EqA.

However, importantly, the EAT also made clear that this “does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity” and noted that acts of harassment and discrimination against trans people in the workplace are also prohibited by the EqA.

Gender reassignment

It is also unlawful to discriminate against someone because of gender reassignment.

Section 7 of the EqA provides that:

“A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing, or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.”

The reference to ‘process’ is not limited to the medical process of reassigning one’s gender, however the individual needs to have made a concerted decision to live their life as the other gender.

The scope of protection was considered in Taylor v Jaguar Land Rover Ltd.

Taylor v Jaguar Land Rover Ltd.

The claimant, Rose Taylor, worked in Jaguar Land Rover’s plant. In 2017, the claimant informed their employer that they were transgender and self-identified as both gender fluid and non-binary. The claimant would be transitioning from male to female identity, and had not undergone any surgical reassignment. The claimant subsequently began wearing female clothes, leading to them being insulted by colleagues. When the claimant raised these concerns with HR and management, their concerns were often dismissed.

The employment tribunal held that, regardless of the fact that the claimant had not undergone any surgical reassignment, they were protected by the EqA.

Although this decision was only at tribunal level, and therefore not binding, it does indicate the potential scope of protection under the EqA.  Whether an individual is protected will be fact-specific and this will sometimes be difficult to know with any certainty. The safest option for an employer would be to assume the EqA applies and act accordingly.

Best practice for employers

Employers should take a proactive and sensitive approach to managing gender identity issues, remembering that they must not discriminate against staff either because of their gender-critical beliefs or on the basis of gender reassignment.

Difficulties could arise where employees have conflicting views over sex and gender and where, for example, one raises a grievance against the other because of gender-critical views expressed in the workplace or on social media.

The employer will need to investigate the grievance and, in deciding whether any action is appropriate, may need to distinguish between taking action because of the employee’s belief (which could fall foul of the EqA) and because of the way that the employee manifested or expressed that belief, if they have done so in an offensive way, for example.

In the latter circumstances, the employer may be able to justify taking disciplinary action against them, but it will be a fine line to tread.

As ever, prevention is better than cure and employers should set clear expectations for their staff, using the following as a starting point:

1. Update internal policies

Employers should review and update their equal opportunities, anti-harassment and bullying policies to ensure that they are up-to-date and set out the behavioural standards required of staff. In particular, policies should highlight discrimination towards an individual’s gender (including gender reassignment) will not be tolerated, and should set out any applicable sanctions.

2. Provide Training

Employers should provide gender recognition and diversity training to all employees across their business. The aim of such training should be to improve employees’ understanding of gender identity, as well as making them aware of acceptable terminology to use in the workplace. Training should also include how to handle any grievances, so that managers and members of HR will also have the confidence to deal with issues that arise.

3. Encourage communication between employees

Some employees may not feel confident in having discussions relating to their gender with their managers or other colleagues at work. Employers should reassure their staff that they are able to have such conversations in a safe environment, and managers will be available to have any such discussions at the employee’s pace.

We’re here to help

If you have any questions about these issues, or would like us to review your internal policies and procedures, please get in touch with a member of our employment team.

Employment

Contact: Matt McDonald  matt.mcdonald@shma.co.uk

Philip Pepper philip.petter@shma.co.uk