Bethan Jones: What do employers need to consider following the Forstater ruling?

Bethan JonesIn the Forstater v CGD Europe and ors case, the employment appeal tribunal (EAT) decided that gender-critical opinions amounted to a philosophical belief, and were worthy of protection from discrimination. Forstater openly communicated her belief that sex is immutable and not to be conflated with gender identity. She considered that a statement such as “trans women are male” was a statement of neutral fact and was not transphobic.

The EAT’s decision caused widespread concern, particularly because it creates a responsibility for employers to manage the conflicting position between staff with gender-critical beliefs and the rights of transgender people, which is by no means straightforward.

There is clearly a need to strike a balance between tolerating unpopular or opposing beliefs, which the EAT’s decision apparently protects, while ensuring a safe environment for employees on the other side of the argument. In its judgement, the EAT was keen to emphasise that it was not expressing a view on the merits of either side of the transgender debate, and that those with gender-critical beliefs should not misgender trans people.

Indeed, trans people retain the protection against discrimination and harassment afforded by the Equality Act, but it clearly falls on employers to manage and maintain that protection.

While employers are not required to make changes to policies or procedures in light of the Forstater decision, it may well be worth carrying out an audit of current policies to ensure they are robust enough. It may be that specific training for managers is worthwhile, to ensure they understand the nuance of their role in managing competing viewpoints.

The transgender debate is live and currently unsettled, making it more difficult for employers trying to navigate the fine line now required after the Forstater judgment. There is concern that the Equality Act 2010 falls short of the framework required to support employers in this, not least since the protected characteristic of gender reassignment would likely only protect a proportion of trans people.

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Recommendations were made for changes and enforcement to the Equality Act in the report of the Women and Equalities Committee in 2019, and it is clear that this is an area of law which will be subject to future change, particularly as society’s expectations become more certain. In the meantime, employers should ensure that staff are not disadvantaged because of a gender-critical belief, while remaining vigilant to behaviour that could amount to harassment.

Bethan Jones is a partner in the employment team at Michelmores