Gender identity and freedom of speech

Yet, from an employment law perspective, failing to strike the right balance may not just mean over-heated debates, it may lead to claims.

A recent case relating to gender identity shows beliefs may be protected under the Equality Act, even if they are controversial or meet vehement opposition.

But does that mean people can say whatever they want at work if they genuinely hold these beliefs? Absolutely not.

Let’s look at the detail.

The Forstater case

Maya Forstater claimed she lost her job as a researcher because of her gender-critical view — which she publicised in a series of tweets — that transgender women could not change their biological sex.

She argued this was unlawful discrimination but initially lost her case at an employment tribunal in 2019 which concluded her views were “not worthy of respect in a democratic society.”

However, following a successful appeal, a tribunal held earlier this month found she experienced direct discrimination.

Why was she protected?

A right to hold potentially controversial views may seem surprising territory for “equal opportunities” legislation.

We will all be familiar with the protections based on such characteristics as sex, disability, or race, but Ms Forstater was relying on her opinions.

However, the list of protected characteristics is wide and includes protection against being disadvantaged because of a “religion or belief”.

It is important to note too that these two words are not synonyms.

Put broadly, religion relates to holding a particular religious faith. Belief covers views separate from religion, but which are reasonably coherent and relate to a weighty and substantial aspect of human life and behaviour.

In practice, protected beliefs are often difficult to define; however, employers shouldn’t ignore them.

Whether her controversial beliefs were protected was a particular issue for the courts. As I’ve mentioned, it took a successful appeal to allow her case to proceed. The appeal court acknowledged the first tribunal was correct to apply this test, but it was wrong in its conclusion.

This means a wide spectrum of beliefs will be protected. And, of course, not everyone will share these views and opinions. Some may even — as this case shows — meet vehement opposition.

Victory for freedom of speech?

The tribunal has attracted considerable publicity, including suggestions its findings are a victory for freedom of speech.

However, that suggestion’s mistaken, so let’s look at what this judgment covers.

Importantly, there is a real difference between someone having a faith or belief and how they express themselves.

Whether we, as employers, share these deeply held ethical and political beliefs is irrelevant. We cannot disadvantage those who hold them. In practice it’s only the most extreme fundamental beliefs that aren’t protected, such as support for Nazism.

Religion is the most obvious analogy.

We should not disadvantage individuals simply because they adhere to a particular faith, or none, even if our personal views are different.

It would be wrong, and dangerous, to stop there though.

For example, an evangelical Christian should not be openly disrespectful or antagonistic in the workplace to others who do not share their beliefs. An extreme illustration would be someone who viewed, on religious grounds, homosexuality as a sin.

They may genuinely hold this view, but still could, and should, face serious consequences if they expressed views over-zealously, including making disrespectful comments.

Accordingly, having a view may be protected, but in the workplace you’re limited as to how you express it and how you behave towards colleagues.

Returning to Ms Forstater — her views were protected; however, that doesn’t mean anyone can display antagonism to, disrespect, or disadvantage someone who is transgender.

Importantly, the tribunal didn’t find Ms Forstater’s tweets were unduly offensive or that she had mistreated colleagues. If they had, the result could have been very different.

Where does that leave employers?

As ever, it’s worth checking policies and procedures reflect the tolerance people of differing faiths and beliefs should expect.

But that paper trail is only the starting point.

Employers should provide appropriate staff training and guidance and, most importantly, ensure they’re aware of what goes on and deal quickly and appropriately with intolerant or disrespectful behaviour.

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