Should ‘Gender Critical’ Views about Trans People Be Protected as Philosophical Beliefs in the Workplace? Lessons for the Future from Forstater, Mackereth and Higgs

Sharon Cowan,Sean Morris

doi:10.1093/indlaw/dwac002

Abstract

Abstract Some Employment Tribunal claims brought under the Equality Act 2010 (EqA) involve situations where a person’s protection from discrimination on the grounds of a protected characteristic—such as sex, sexual orientation or gender reassignment—comes into conflict with the rights of others, such as, for example, the right to freedom of expression or the right to manifest religion or belief under the European Convention of Human Rights (ECHR), or the protection from discrimination on the ground of religious or philosophical belief under the EqA itself. This article provides a critical account of the application of discrimination law in the recent cases of Forstater, Mackereth and Higgs, looking in particular at the application of the Grainger criteria, as well as relevant human rights provisions. Specifically, we offer an analysis of recent cases where claimants have alleged unlawful discrimination relating to ‘gender critical’ views about transgender people (and sex/gender more broadly), which they argue constitute protected religious and/or philosophical beliefs. We argue that while it is necessary that the courts maintain a flexible approach when applying discrimination and human rights law, it is vital that coherent equality principles are applied consistently when reconciling and balancing conflicting rights. This is particularly important in the context of discrimination and human rights, where there is an ongoing debate about the extent to which trans peoples’ rights are adequately protected and whether protecting such rights infringes the rights of others.

Highlights

Some Employment Tribunal claims brought under the Equality Act 2010 (EqA) involve situations where a person’s protection from discrimination on the grounds of a protected characteristic—such as sex, sexual orientation or gender reassignment—comes into conflict with the rights of others, such as, for example, the right to freedom of expression or the right to manifest religion or belief under the European Convention of Human Rights (ECHR), or the protection from discrimination on the ground of religious or philosophical belief under the EqA itself
We offer an analysis of recent cases where claimants have alleged unlawful discrimination relating to ‘gender critical’ views about transgender people, which they argue constitute protected religious and/or philosophical beliefs
We argue that while it is necessary that the courts maintain a flexible approach when applying discrimination and human rights law, it is vital that coherent equality principles are applied consistently when reconciling and balancing conflicting rights

Summary

INTRODUCTION

Employment Tribunal claims brought under the Equality Act 2010 (EqA) can involve situations where a person’s protection from discrimination on the grounds of a protected characteristic—such as sex, sexual orientation or gender reassignment—comes into conflict with the rights of others, such as, for example, the right to freedom of expression or the right to manifest religion or belief under the European Convention of Human Rights (ECHR), or the protection from discrimination on the ground of religious or philosophical belief under the EqA itself. Further comments made later in Ellis, when considering the fourth Grainger criterion (which requires ‘a certain level of cogency, seriousness, cohesion, and importance’) appear in our view no less relevant to the second criterion, when distinguishing a belief from an opinion or viewpoint based on the present state of information available: the tribunal in Ellis noted the claimant’s refusal to engage with opposing viewpoints or evidence as relevant to their finding that Grainger criteria were not satisfied.. In Farrell v South Yorkshire Police Authority Employment Judge Rostant held that this criterion was not satisfied in the case of a claimant’s belief in conspiracy theories regarding 9/11 He reasoned that some sort of objective assessment of the cogency and cohesion of a philosophical belief is expected of the Tribunal, and that the criteria were more difficult to satisfy where beliefs relate to matters where there is a substantial amount of evidence in the public domain, as opposed to where beliefs relate to the unknowable, such as the existence of the deity, for instance. We will explore the treatment of the fifth criterion by the first instance Tribunals in (A) Mackereth, Forstater and (B) Higgs

Mackereth and Forstater

The EAT Decision—AWrong Turn?

The Potential Consequences of Forstater EAT

CONCLUSION