Gender critical beliefs: Managing conflicts in the workplace

Being an employer isn’t easy.  On the one hand, it is important to recognise that staff are entitled to hold opinions on a whole range of matters, including those that other colleagues may strongly disagree with. On the other hand, the expression of those views and opinions in the workplace can generate discord and animosity.

Being able to manage these conflicts effectively and sensitively requires good communication and, above all else, an enlightened leadership otherwise the potential for discrimination claims is clear.

The latest potential minefield for employers is the potential conflict between employees who hold or support gender-critical beliefs and other groups, including trans persons and supporters of trans persons, who do not. It is no doubt a difficult area to consider but employers must engage with it.

We are seeing a steady stream of cases brought by individuals (often with crowd-funding) with gender-critical beliefs and it is a trend that is set to continue. The focus is beginning to shift away from public sector employers to private companies who may not be comfortable with this area of evolving law or may be at risk of ‘picking a side’.

In this blog, Emma Whiting, explores the relevant legal issues and provides her recommendations on steps employers can take to protect against future discrimination claims by individuals holding gender-critical beliefs.

What is a gender critical belief?

A person who holds a gender critical belief recognises women as adult human females and men as adult human males and that it is impossible for a person to change sex which is determined at conception.

Is a gender critical belief capable of protection under the Equality Act 2010?

Each case will need to be tested on facts, but there have been several high-profile cases in recent months where a gender-critical belief has been upheld as being a philosophical belief capable of statutory protection pursuant to section 6 of the Equality Act. Therefore, it is safest to assume that employees holding such beliefs will be protected. If they experience discrimination (including harassment) and/or victimisation at work for holding those beliefs, they will be entitled to pursue claims against the employer (as well as named individuals) for discrimination.

Maya Forstater is a name that should be familiar to most; Maya is a tax expert and feminist campaigner who earlier this month was awarded £100,000 in compensation after she lost her job in 2019 for posting tweets in which she’d expressed her view that biological sex is immutable and cannot be changed.  JK Rowling is one of her supporters.

More recently, Denise Fahmy won her case against the Arts Council, after she was subject to harassment via an online petition and comments posted from staff on that petition which the Arts Council took down 24 hours after it first became live.  Notably, the Arts Council tried to rely on the statutory “reasonable steps” defence to say that it should not be found liable for the actions of its staff, because it had taken all reasonable steps to prevent the harassment from occurring, including taking disciplinary action against both the author and the employees that had posted the comments on the petition, and also had a Dignity at Work Policy.  Unfortunately for them, the policy wasn’t up to date. It referred to gender (which isn’t a protected belief) and omitted sex and belief discrimination which are, and there had been no recent staff equality and diversity training and certainly none that had flagged the importance of respecting gender-critical beliefs. The remedy hearing in this case is still to take place, and there’s every possibility that the Arts Council may appeal.

Allison Bailey, a gender-critical barrister, and a founder of the LGB Alliance was this month awarded £20,000 in costs after she took her employer, Garden Court Chambers, to Tribunal and they were found to have discriminated against her for criticising Stonewall.  The costs award was specific to Garden Court Chamber’s conduct of the case; last year she was awarded £22,000 in compensation when her discrimination claim was upheld.

Rest assured, these three cases are just the tip of the iceberg.  For what remains of 2023 and the rest of 2024, we are going to hear about a whole host of other claims and claimants alleging that they have been discriminated against for their gender critical beliefs.  So, there’s no time like the present for employers to engage with the subject-matter.

What steps should employers be taking to avoid liability and manage conflict situations more effectively?

Employees should be able to hold and express different opinions and be permitted to engage in reasoned and rational debate about their respective opinions in the workplace.  It is vital that employers create a workplace culture that allows that freedom of expression but which also ensures that employees respect others’ views and opinions.

In light of a slew of recent decisions upholding discrimination complaints by those holding gender-critical beliefs, and those that are hotly anticipated, we would strongly recommend employers take the following steps:

• Review and update Equality Policies and Procedures, including related procedures on bullying & harassment, to ensure they refer to all 9 protected characteristics (including the broad category of philosophical belief);
• Advise managers against expressing their own personal views on one side of the debate, or the other, in a conflict situation, as it could be perceived as the view of the employer and/or encourage others to wade in;
• Clearly articulate to staff acceptable standards of behaviour and the consequences of their actions when they fall short of those standards, when expressing and manifesting personal beliefs in the workplace;
• Acknowledge that disagreements will arise and encourage staff in that situation to express any disagreement with moderation and not label individuals with gender-critical beliefs as, for example, transphobes, bigots etc, or describe their views as hateful;
• Take prompt and decisive action the moment that the manifestation of an individual’s belief/s strays into bullying and/or harassment territory (i.e. conduct which has the purpose or effect of creating an intimidating or hostile working environment)
• Invest in staff equality training which is routinely refreshed and is, ideally, mandatory.

If you would like any advice on any of the topics covered in this blog, or are interested in exploring how Torque Law could assist you with your equality and diversity training needs, please get in touch with Emma (Emma.whiting@torquelaw.co.uk) or another member of the team