Identity Politics and the Equality Act 2010

Katy Wedderburn, Partner, Employment Law & Discrimination

Recent media coverage has highlighted the tensions between the views of gender identity theorists and those who hold the belief that sex is immutable, and cannot be changed from male to female, or vice versa.

Gender and gender identity theory are not included in the Equality Act 2010 (EqA) definition of “sex”, which is a protected characteristic. They are also not expressly covered by the EqA definitions of the protected characteristics of “gender reassignment” or “philosophical belief.”

Beliefs and protection

Since Maya Forstater’s successful appeal to the Employment Appeal Tribunal (EAT) in her discrimination claim against CDG Europe, there have been several cases about what may amount to a protected philosophical belief (section 10 Equality Act 2010). The EAT held that her philosophical beliefs in “sex realism” (including a belief that sex is immutable and should not be conflated with gender identity, and that trans women are men); otherwise known as “gender critical” beliefs, were worthy of respect in a democratic society.

Additionally, it was acknowledged that a belief that gender identity is paramount could be considered a protected philosophical belief under section 10 EqA. So far, there is no definitive binding decision on this point.

In deciding whether the beliefs were worthy of respect, the EAT applied the statutory provisions in line with the Human Rights Act 1998 so that they were compatible with the European Convention on Human Rights (ECHR) of the claimant.

The relevant ECHR rights were the Article 8 right to respect for private and family life; Article 9, freedom of thought, conscience, and religion, including manifestation of belief and Article 10, freedom of expression. These convention rights are subject to Article 17 which prohibits the abuse of rights.

The prohibition means there is no implied right to engage in any activity aimed at the destruction of any of the ECHR rights and freedoms to a greater extent than is provided for in the Convention. The EAT held that for a belief to trigger the application of Article 17, it would have to be akin to Nazism or totalitarianism. This clarified the scope for what may amount to a protected belief.

Ms. Forstater was awarded over £100,000 in compensation.

Allison Bailey, a lesbian barrister, was discriminated against and victimised by her own chambers, Garden Court Chambers, due to on her gender critical beliefs. Her beliefs included that women are defined by biological sex rather than gender identity, and that gender theory, as proselytised by Stonewall, is severely detrimental to women and to lesbians. She was awarded £22,000 in compensation. A £20,000 costs award was also made against Garden Court Chambers and two of its KCs, as representatives of the Chambers, for the unreasonable conduct of their solicitor. The outcome of an appeal against the original decision in as far as it found that Stonewall had not caused, instructed, or induced discrimination, is awaited.

An employment tribunal held in 2020 in Taylor v Jaguar Land Rover that an employee who identified as gender fluid and who presented in different gender identities was protected from discrimination, having the protected characteristic of “gender reassignment” (section 7 of the EqA). The claimant fell within the definition of being a person who “is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.” Some commentators question this decision. It is not binding authority for the proposition that all gender fluid or non-binary people will meet the criteria for that protected characteristic and each case should be considered on its facts.

More recently, Denise Fahmy brought a successful harassment claim against Arts Council England when her gender critical beliefs were referred to as “bigotry,” “cancer” and “transphobic.” The decision was not appealed, rather, it is reported that Arts Council England apologised and reached a settlement following the original tribunal decision.

In an appeal to the EAT against Farmor’s School Mrs Higgs, the claimant’s lack of belief in gender fluidity or that someone could change their biological sex; that the Bible prohibits same sex relationships and gender fluidity, were found to be worthy of respect in a democratic society. They were within the protected characteristic of philosophical belief in section 10 of the EqA.

Higgs was dismissed for her social media posts which criticised her employer’s teaching of gender fluidity in sex education. Her posts were considered to be a justifiable objectional manifestation of her belief under the European Convention on Human Rights under Articles 9 (freedom of thought, conscience, and religion) and 10 (freedom of expression). Whether and to what extent the manifestation of such a belief can by curbed, requires a proportionality test. It was held that a restriction or manifestation of her belief; or freedom of expression, such as disciplinary action or dismissal were discrimination unless proportionately justified as necessary for a legitimate aim in a democratic society. The EAT set out guidelines about how to approach justification. This outcome has been appealed and will be heard by the Court of Appeal in the autumn. It is widely hoped this will give a welcome and important clarification of the law.

In May 2024, Rachel Meade, a social worker was successful in her claims against City of Westminster Council and Social Work England, her professional regulator, for harassment. She was recently awarded nearly £60,000 in compensation including aggravated damages against both respondents and exemplary damages, a punitive award against Social Work England. The judgement also recommended that the council and the regulator deliver training to HR staff about freedom of expression and protected beliefs.

Finally, in the first Scottish “gender critical” belief claim, Roz Adams recently succeeded in claims of harassment, direct discrimination and indirect discrimination having been labelled as “transphobic” and subjected to a “heresy hunt” disciplinary process for asking a question for a service user of Edinburgh Rape Crisis Centre, based on her belief that sex is binary and immutable. A remedy hearing is still to come.

What do these cases mean for employers?

Employers must take care. Employees holding sex realism, or “gender critical “beliefs are protected from discrimination, harassment, and victimisation. Examples of harassment in the cases above have cost employers’ significant compensation and tribunal costs/expenses.

While a gender identity theorist may meet the criteria for the “gender reassignment” EqA protected characteristic, there is not (as far as we are aware) a definitive binding authority that gender identity theory is a protected section 10 EqA belief. The question whether the theory as a belief is worthy of respect in a democratic society and/or whether it aims at the destruction of the rights of others will be key.

Rights to protection from discrimination and harassment apply to everyone who has a protected characteristic; are perceived to have a characteristic; or are associated with someone who does. There are also protections from victimisation.

Employers should not close down or sanction those holding gender critical or sex realist beliefs. They should not discount the views of those who hold gender identity theory out of hand. They should carry out a careful assessment of applicable protections and when they clash for different groups, they should consider the impact of workplace policies and arrangements on them. Can having regard to the view of one group to the disadvantage of another be justified?

Employers should be aware of the working environment and how its workforce is affected. They are responsible for workplace harassment related to protected characteristic unless they take “reasonable steps” to prevent it.

Arrangements and policies which go beyond the protections afforded under the EqA should be reviewed, e.g. treating trans, non-binary or gender fluid employees more favourably than others; people who have disabilities; are of a particular sex, age or age group; have a particular philosophical belief, sexual orientation (to name a few other protected characteristics). There is a risk having introduced preferential policies form some, will breach the rights of others.

Policies should be reviewed and updated. Managers should be trained about what the law of discrimination actually says.

Finally, In October 2024, a new duty on employers to take reasonable steps to prevent sexual harassment will apply. If a successful claim for sexual harassment is made, employers that can’t show the steps taken to meet this duty risk an increase to (potentially uncapped) compensation awards for harassment of up to 25%. The Equality and Human Rights Commission will have enforcement powers to conduct investigations, enter agreements with organisations to address issues and intervene or assist with disputes.