Gender critical beliefs and freedom of expression

Debate continues to rage regarding ‘gender critical’ beliefs and their status as a philosophical belief. Last year the EAT held that a belief that a person’s sex is an immutable biological fact, not a feeling or an identity, and that a trans woman is not in reality a woman is protected as a philosophical belief under the Equality Act 2010.

In the same case, Maya Forstater v CGD Europe & others an employment tribunal has now upheld Ms Forstater’s claim of direct discrimination on ground of belief. Her contract was not renewed because she had expressed gender critical beliefs which some colleagues found offensive. She had also described a prominent gender-fluid individual as a “part time cross dresser” and a “man in heels” who should not have accepted an accolade intended for female executives, posted a campaign video on twitter containing ominous music and imagery, and argued that gender self-ID put women and girls at greater risk.

In their defence, the Respondents argued that the non-renewal of contracts was not motivated by her beliefs, but the way in which she had expressed them. However, the Tribunal found that the manifestation of the belief can only be separated from the belief itself if objectively offensive, bearing in mind the Claimant’s qualified right to manifest her belief under Article 9 of the European Convention on Human Rights. The Tribunal held that the Claimant’s tweets and other communications were not objectively offensive and that they were an assertion of the core protected belief.

For employers, this is a helpful clarification of the perennial clash of rights arising from protected characteristics. Although challenging to navigate real life conflicts in workplaces (and on social media in particular) stemming from divergent views about trans issues, employers are well-advised to note that gender critical views are protected.