New case law: Employers take action to guard against potential discrimination claims based on employees’ gender-critical beliefs

Those holding gender-critical beliefs believe that sex is biological and immutable, and should be differentiated from gender identity.

Employers need to be alert to possible discrimination claims – direct and indirect - from employees following recent legal rulings that gender-critical beliefs can be protected as religious or philosophical beliefs for the purposes of discrimination law.

A belief is protected as a religious or philosophical belief if it:

• is not just an opinion or viewpoint based on present information;
• is genuinely held;
• is cogent, serious, coherent and important;
• relates to a substantial and weighty aspect of human life or behaviour;
• is worthy of respect in a democratic society; and
• is not incompatible with human dignity or in conflict with others’ fundamental rights.

There is direct discrimination if an employee is treated less favourably than other employees because of their protected belief. There is indirect discrimination if:

• an employer operates a provision, criterion or practice (PCP);
• which puts a group of employees (including the employee who is complaining about it) who share a protected characteristic (such as their gender-critical beliefs) at a substantial disadvantage compared with people who do not hold such beliefs;
• the disadvantage suffered by the individual making the complaint and the other members of the group are the same; and
• the PCP cannot be justified as a proportionate means of achieving a legitimate aim.

In effect, there is indirect discrimination where an employer’s PCP applies to everyone, but the PCP has a worse effect on one particular group of employees who share a protected characteristic than the rest of the workforce.

Treatment of employees holding gender-critical beliefs may also constitute harassment or victimisation.

Conversely, an employee with gender-critical beliefs should not harass, victimise or discriminate against a co-worker who does not hold those beliefs. For example, the courts have said that a deliberate misgendering of a trans colleague by another employee is capable of amounting to harassment of the trans employee.

Operative date

• Now

Recommendation

• Employers should review their policies – particularly, their social media policies, given the potential for employees to post contentious statements online, and equal opportunities and harassment policies – and their induction and training, so they cover issues that can arise relating to gender-critical beliefs.
• Pause to take stock before starting disciplinary action based on an employee’s gender-critical beliefs, or lack of them.
• Consider professional advice if an issue arises relating to gender-critical beliefs arise at work.

Other resources selected by ICAEW Library & Information Service

• Article from the CIPD on Stonewall, LGBT+ inclusion and gender critical views
• Guidance from Acas on Discrimination and the law
• Factsheet from the CIPD on HR policies