Revisiting gender-critical beliefs in the workplace

October 2, 2024

Employment tribunals have seen an increasing number of cases on the manifestation of protected beliefs over the past few years. It is a topic we shed light upon back in June 2022 here and, in this insight, we discuss another flurry of recent gender-critical cases that highlight ongoing tensions around this issue and illustrate how different employment tribunals have approached the subject. We also touch on the removal of the definition of "woman" from the Gender Representation on Public Boards (Scotland) Act 2018.

Bailey v. Stonewall Equality Ltd and others: causing or inducing discrimination

The Employment Appeal Tribunal (EAT) upheld a tribunal's decision that Stonewall Equality Ltd (Stonewall), an LGBTQ+ charity, did not cause or induce Garden Court Chambers (GCC) to discriminate against Allison Bailey (Bailey) on the grounds of her gender-critical beliefs contrary to the Equality Act 2010 (EA).

The legal question in this case was whether Stonewall's actions amounted to causing or inducing GCC to discriminate against Bailey, which would make Stonewall liable under the EA.

Bailey, a barrister at GCC, had expressed gender-critical views, particularly opposing Stonewall's influence and policies regarding transgender issues. She was an outspoken critic of Stonewall's Diversity Champions scheme, of which many organisations (including GCC) were part. Bailey argued that her chambers discriminated against her and victimised her due to her gender-critical views, and that they were influenced to do so by Stonewall. Bailey claimed that Stonewall played an active role in encouraging or pressuring GCC to take adverse actions against her because of her gender-critical beliefs. This included complaints made by Stonewall to GCC regarding Bailey's public statements, which Stonewall perceived as being in conflict with their policies on transgender issues.

Under the EA, a party can be held liable for unlawfully discriminating against someone if it causes or induces another party to commit such discrimination. This would involve one party encouraging, pressuring or influencing another to discriminate against a person based on protected characteristics - in this case, Bailey's gender-critical beliefs. The tribunal examined whether Stonewall's actions, such as communicating complaints or expressing disapproval of Bailey's views, played a direct role in influencing GCC to treat Bailey less favourably because of her beliefs.

To hold Stonewall liable for causing or inducing discrimination, it would have been necessary to prove that Stonewall's actions directly led GCC to treat Bailey less favourably. However, the tribunal did not find that Stonewall had caused or induced GCC to discriminate against Bailey. While it acknowledged that Stonewall had complained about Bailey's actions and that GCC might have felt pressure due to its association with Stonewall, this was not sufficient to establish that Stonewall directly caused or induced GCC's decisions.

As a result, Stonewall was not held liable for causing or inducing discrimination against Bailey. The tribunal concluded that the responsibility for the decisions made by GCC rested with GCC itself and not with Stonewall. It did go on to find that GCC had discriminated against and victimised Bailey due to her gender-critical beliefs. This finding was based on the actions GCC took, including the internal investigation into Bailey's conduct and the subsequent treatment to which she was subjected.

The EAT dismissed Bailey's appeal in respect of the tribunal's decision that Stonewall had not caused or induced GCC to discriminate against her.

The case underscores the high bar which a claimant has to pass to establish that an external organisation such as Stonewall is responsible for discrimination against them by their employer. To a lesser extent, it also serves as a reminder that organisations must still be cautious about how their policies or actions might indirectly cause discrimination by others, even if they do not directly carry out the discriminatory act themselves.

Orwin v. East Riding of Yorkshire Council: inappropriate email signatures

Here, an employment tribunal ruled against an employee's claims of direct discrimination, unfair dismissal and wrongful dismissal based on his gender-critical stance against his previous employer, the East Riding of Yorkshire Council (the Council).

The employee expressed gender-critical beliefs, specifically the view that sex is biologically immutable and binary. He argued that these beliefs, which align with the idea that a person's sex is determined at birth and cannot be changed, were the reason for his treatment by the Council. The tribunal accepted that the employee's beliefs satisfied the Grainger criteria (which we discussed in an earlier article here), meaning that his views were considered a protected characteristic under the EA.

The Council had implemented a voluntary policy encouraging employees to include pronouns in their email signatures. This policy did not enforce a specific set of pronouns, allowing staff the option to either participate or abstain. The employee contested this policy, claiming it endorsed a self-identification ideology he did not support. As a form of protest, he modified his email signature to read "XYchromosomeGuy/AdultHumanMale". Despite repeated requests from management to remove this addition, he refused and was subsequently terminated from his position.

In reference to the case Higgs v. Farmor's School [2023] EAT 89, the tribunal concluded that the employee's termination was not due to the lawful expression of his beliefs as protected under Articles 9 and 10 of the European Convention on Human Rights. The tribunal determined that the link between the email signature and the employee's gender-critical views was not sufficiently close. The signature was seen as an intentional provocation against the concept of gender self-identification rather than a reflection of the employee's own gender identity. As such, the dismissal was a reaction to the inappropriate way the employee chose to express his beliefs, not the beliefs themselves, and therefore did not constitute direct discrimination.

In assessing the Council's disciplinary action, the tribunal took into account that the employee had a role that involved interaction with the public and that he was using the Council's systems to provoke. The potential for harming the Council's reputation and negatively affecting service users was deemed greater than if the views were shared privately on social media. His email signature was in direct conflict with the Council's efforts to foster inclusivity, in line with its public sector equality duty. However, the tribunal did acknowledge that the email policy was not well-conceived or effectively implemented.

This case highlights the intricacy of balancing the protection of beliefs under the EA with the need for employers to manage workplace conduct and relationships. While the tribunal recognised the protection of gender-critical beliefs, it also demonstrated that holding such beliefs does not provide absolute immunity from dismissal or other workplace actions.

Adams v. Edinburgh Rape Crisis Centre: subjecting gender-critical employees to discrimination and constructive dismissal

This employment tribunal case involved Ms Adams, who successfully claimed constructive dismissal and discrimination based on her gender-critical beliefs. The case stemmed from Adams' concerns about how gender issues were handled at the Edinburgh Rape Crisis Centre (ERCC), particularly in relation to the centre's inclusive approach to trans individuals.

Adams, who began working at ERCC in February 2021, expressed her discomfort with the centre's stance that "a trans woman is a woman" and raised concerns when a rape survivor inquired about the biological sex of her support worker. Adams' request for guidance on how to respond to the survivor led to her being subjected to disciplinary proceedings, which she argued were driven by the ERCC's disapproval of her views.

The tribunal found that the disciplinary process was deeply flawed and described it as "Kafkaesque", indicating that the ERCC aimed to make an example of Adams for her beliefs. It concluded that Adams had been harassed and discriminated against due to her gender-critical views, which are protected under the EA. Adams eventually resigned, feeling that she could no longer trust the ERCC to treat her fairly and the tribunal upheld her claim of constructive dismissal in finding that the ERCC had breached the implied term of mutual trust and confidence.

This ruling is seen as a significant victory for those advocating for the right to hold gender-critical beliefs without facing discrimination in the workplace. It also emphasises the importance of respecting diverse perspectives, particularly in sensitive environments like rape crisis centres. Adams' case has been compared to other recent legal battles, like those discussed above, in the UK involving gender-critical beliefs, highlighting ongoing tensions around this issue in various sectors.

The Gender Representation on Public Boards (Amendment) (Scotland) Act 2024: definition of "woman"

The Gender Representation on Public Boards (Amendment) (Scotland) Act 2024 (the 2024 Act) came into force on 2 August 2024 and removed the definition of "woman" from section 2 of the Gender Representation on Public Boards (Scotland) Act 2018 (the 2018 Act), following a debate about how to legally define gender and sex in Scotland. The 2018 Act was designed to ensure that public boards in Scotland achieve gender balance.

When enacted, the 2018 Act sought to encourage more women to serve on public sector boards in Scotland, aiming for at least half of the non-executive members to be women. Whilst the 2018 Act did not explicitly address transgender individuals, its definition of "woman" included any person who self-identified as a woman.

However, a legal challenge in 2022 led to a ruling that this definition was outside the Scottish Parliament's authority because it altered the concept of protected characteristics as established by the UK-wide EA. Consequently, the definition in the 2018 Act and related guidance was considered legally invalid.

The new 2024 Act aligns with the Scottish Government's 2023/24 plans and the court's decision. The 2024 Act does not introduce a new definition of "woman". Instead, the scope of the 2018 Act should be read in a way that is consistent with the Scottish Government guidance, which it published following the 2022 legal challenge. This means interpreting the term "woman" in the 2018 Act in the same way that it is defined in the EA, which includes transgender women who have a gender recognition certificate (rather than those who self-identify as women). The Inner House of the Court of Session confirmed this interpretation in a separate ruling in 2023.

The controversy surrounding this legislative amendment focuses on the implications for women's rights and protections. Some contend that it dilutes the meaning of "woman" and affects policies designed to promote gender equality. Meanwhile others argue that the change reflects a necessary adaptation of the law to ensure that trans women are fully included in public affairs, leadership and governance.

Tags for article: Employment and Labor in the United Kingdom, Discrimination, Retaliation and Unlawful Harassment Litigation, Equal Employment, Diversity and Discrimination