An update on gender discrimination law
The tribunals continue to wrestle with the difficult issues surrounding the occasional conflict between the rights and beliefs of the trans community and those sometimes described as ‘gender critical’. In Higgs -v- Farmor’s School, the plot has thickened further. This is another case that builds on the foundations set out by the appeal courts in Forstater.
Protected beliefs
Higgs alleged that her dismissal was discriminatory on the ground of her beliefs – that gender fluidity did not exist and that it was impossible for men to become women and vice versa. She lost: a tribunal found in 2020 that the claimant was dismissed not because of her beliefs, but because her statements on social media were liable to create the impression that she, and her employers by association, were transphobic/discriminatory.
EAT has now upheld the claimant’s appeal. The question, said EAT (employment appeal tribunal), was whether there was a sufficiently close connection between the claimant’s protected beliefs and her social media posts. EAT said that there was plainly such a connection – so that the claimant’s actions were a ‘manifestation’ of her beliefs.
The right question for the tribunal then to ask was this: was the employer’s action justified? Were the school’s steps “prescribed by law and necessary for the protection of the rights or freedom or reputation of others”?
How an employer reacts
The EAT set out a number of interesting pointers for consideration in these cases including: whether ‘a less intrusive limitation might be imposed’ (presumably, in a case such as this, something short of dismissal, perhaps); the content of the claimant’s manifestation and the tone used; whether the worker had made it clear that their posts were personal rather than work-related; the nature of the employer’s business; and the impact on vulnerable service users.
The case now returns to a tribunal for reconsideration along these lines. From a lawyer’s perspective this line of cases is fascinating. Forstater has made it clear that ‘gender critical’ beliefs may be “worthy of respect in a democratic society” and merely holding those beliefs will not render an employee open to charges of discrimination or harassment.
Nevertheless, EAT recognises that there are circumstances in which the manifestation of such a belief might harm others. In Forstater the ET and the EAT concluded that no such harm was done. The claimant had merely expressed her opinion.
Human rights
In Higgs, EAT has again stressed the importance of the human rights context in these cases. The right to freedom of expression and the right to manifest religious (and other) beliefs are essential rights in any democracy.
It remains to be seen where the next tribunal will draw the balance between what at the moment seem increasingly to be competing rights. The state of affairs is unique, perhaps: it is not often that one freedom is said to contain liberty to undermine another.
The writer’s view is that we should tolerate anything except intolerance (of course that is a personal view!). But the debate is really a societal one – as the complexities of the legal analysis perhaps confirm.
Author: Paul Scholey, Employment Consultant
