Key Takeaways

• The thrust of the case law is that colleagues and employers are expected to tolerate respectful expressions of gender-critical beliefs, even if they consider those beliefs to be inherently offensive.
• Similarly, people with gender-critical beliefs must be tolerant of expressions of belief in gender self-identity.
• Any policies or practices should be applied evenly.

To discuss any of these issues further, please get in touch with your usual Baker McKenzie contact. 

In more detail

There are currently four main cases in this sphere: (1) Forstater v. CGD Europe (Forstater); (2) Mackereth v. DWP (Mackereth); (3) Higgs v. Farmor's School (Higgs); and (4) Bailey v. Garden Court Chambers and Stonewall (Bailey). There have been decisions in all four cases during 2022.

In earlier years, the employment tribunals in Forstater, Mackereth and Higgs came to different decisions on whether genuinely held gender-critical beliefs were protected under the Equality Act 2010. The issue was resolved in June 2021, when the EAT in Forstater decided that they are protected. The EAT confirmed the position this year in Mackereth. Both judgments recognise that gender-critical beliefs, whether born out of religion or not, are highly offensive to some. However, this does not render them unprotected. Key to the EAT's decisions is the fundamental importance of freedom of expression, which should only be limited in the most extreme cases (the EAT giving the example of Nazism or similar views).

Following the EAT's decision, Forstater returned to the Employment Tribunal this year to decide whether Ms. Forstater had suffered discrimination because of her beliefs. It decided that she had, the unlawful act being the non-renewal of her contract. Her employer, the Center for Global Development (CGD), argued that the reason for non-renewal was the way in which Ms. Forstater had expressed her beliefs, and not the fact that she held them. However, the tribunal concluded that her communications were essentially just statements of her beliefs. Therefore, the communications could not be disassociated from the beliefs themselves, meaning that CGD's decision to not renew her contract was unlawful discrimination. Some of Ms. Forstater's communications could be described as provocative, but the tribunal considered that this was the "common currency of debate" and was not objectively offensive or unreasonable.

The Forstater Employment Tribunal decision was closely followed by the EAT's decision in Mackereth. As well as deciding on the issue about protection of belief, the EAT also had to consider whether discrimination had occurred. The Department of Work and Pensions (DWP) had ceased to engage Dr. Mackereth as an assessor. A key reason had been his refusal to address service users by their chosen pronouns. The EAT determined that this reason was properly separable from Dr. Mackereth's beliefs. It noted that the DWP had tried to explore how to accommodate Dr. Mackereth's beliefs, but it had been impracticable to do so. For example, trying to triage service users based on gender identity could have led to complaints.

Around the same time as Forstater and Mackereth, the Employment Tribunal delivered its judgment in Bailey. Applying Forstater, the Employment Tribunal confirmed that Ms. Bailey's gender-critical beliefs were protected. Similarly to Forstater, the tribunal found that Ms. Bailey had suffered detriment because of what in essence was simply an expression of her beliefs. The facts, in brief, were that Ms. Bailey is a barrister who had made public statements about her gender-critical beliefs, which had attracted some critical tweets. This led to her chambers tweeting that it was investigating her, and later upholding a complaint by the charity Stonewall about some of her tweets. The tribunal found that the chambers posted the tweet because of belief - they disagreed with Ms. Bailey's beliefs and wanted to let it be known publicly that they were doing something about it. The tribunal also concluded that saying that there would be an investigation was not neutral; it implied that something wrong had occurred. As for the investigation outcome, the tribunal found that this was materially influenced by disapproval of Ms. Bailey's beliefs. Ms. Bailey is appealing the tribunal's decision in respect of its finding that Stonewall had not instructed, caused or induced discrimination by the chambers.

The final chapter in the case law is Higgs. This was due to be heard in the EAT this summer, but was postponed due to the recusal of one of the EAT lay members. This was on the ground of potential bias, because the member had made public statements opposing gender-critical beliefs. When the appeal is heard, the issue will be whether the reason for the detriments in the case was properly separable from Ms. Higgs' protected beliefs.

Forstater v. CGD Europe, Employment Tribunal, 6 July 2022

Mackereth v. DWP, Employment Appeal Tribunal, 29 June 2022

Higgs v. Farmor's School, Employment Appeal Tribunal, 5 July 2022

Bailey v. Garden Court Chambers and Stonewall, Employment Tribunal, 27 July 2022