Competing interests: protecting transgender rights and freedom of religious belief – the UK perspective

There are workplace protections for people who identify as transgender in the UK and Australia. In this series of articles, we will examine the tensions that employers face between these protections in the context of competing interests such as, in the UK, religious or philosophical beliefs and, in Australia, the implied right to freedom of political communication and the fight against Discriminatory provisions for religious beliefs. Here we briefly review the situation in the UK.

Current position

Although sex reassignment has been covered as a protected characteristic under the Equality Act since its introduction in 2010 (and before that was covered to a lesser extent by the Sex Discrimination (Sex Reassignment) Regulations 1999 )), it has recently become the subject of a number of high-profile claims before the Tribunal which have highlighted the difficulty that can exist in balancing the rights of different protected groups.

The Equality Act 2010 (EqA) sets out nine characteristics which are protected against discriminatory behavior in various situations, including in the workplace (which extends to jobseekers).

One such protected characteristic is protection based on reassignment of sex, although it is generally recognized that this term is now somewhat outdated, with the preferred term now being ‘trans’. This protection applies to an individual who “proposes to undergo, is undergoing or has undergone a process (or part of a process) with the aim of changing sex by modifying a physiological or other attribute of sex”.

It is not necessary for an individual to have undergone surgery or be under medical supervision to meet the definition of sex reassignment.

Protections

When a person is covered by the protection against gender reassignment offered by the EqA, they have the right not to be subject to:

  • Direct discrimination: i.e. where they receive less favorable treatment because of their protected characteristic, for example, when a person is not promoted because they undergo a gender reassignment.
  • Indirect discrimination: that is, where a workplace policy or practice, applicable to all staff, disadvantages those with the particular protected characteristic and the employer cannot demonstrate that the particular practice in question may be justified.
  • Harassment: that is to say, when a person is the victim of an undesirable behavior related to their change of sex which has the purpose or the effect of undermining their dignity or of creating an intimidating, hostile, degrading, humiliating or offensive. Therefore, comments intended to be jokes, made with no intent to offend, may still constitute harassment if they have caused a person to feel humiliated or degraded.
  • Victimization: that is, when an individual suffers harm because he has already done, or is suspected of having done, a protected act or it is suspected that he could do a protected act at the coming. A protected act includes having previously filed a claim or grievance alleging gender reassignment discrimination or testifying in such proceedings.

However, a number of recent cases have highlighted the potential for protection granted under the EqA on the basis of sex reassignment to conflict with protection granted for another protected characteristic – religious belief or philosophical.

Recent relevant case law

The recent case of Forstating against CGD Europe [06.07.22] specifically examined whether an individual’s view that sex is biologically immutable was likely to amount to a philosophical belief and therefore attract protection under the EqA. In this case, a guest researcher at an international think tank shared her views on gender reassignment widely on social media, prompting a number of complaints. In view of these complaints, CGD Europe took the decision not to renew Ms. Forstater’s contract.

At first instance, the Labor Court (the Court) concluded that this did not constitute a philosophical conviction, finding in particular that such an opinion was not worthy of respect in a democratic society and was contrary to the fundamental rights of others and, as such, could not meet the test to amount to a philosophical belief. However, this decision was overturned by the Employment Appeal Tribunal (EAT) which found that critical belief in gender was widely held and that although the views may be found offensive to some, they were worthy of respect and therefore covered by the EqA.

The case was then returned to the Tribunal to rule on Ms Forstater’s claims of discrimination based on philosophical beliefs. The Tribunal found that CGD Europe’s decision not to renew Ms Forstater’s contract has been an act of direct discrimination. In coming to its decision, the Tribunal considered the difference between having a belief and expressing that belief and focused on whether Ms. Forstater had expressed her views in a reprehensible or unreasonable manner. . She finally concluded that she did not and that the non-renewal of her contract because of the expression of her opinions therefore constituted an act of direct discrimination.

In Allison Bailey v Stonewall Equality Limited and others [27.07.22], Ms Bailey, a lawyer, has filed a lawsuit against her lawyer’s firm and Stonewall, a charity that promotes the rights of the LGBTQ+ community. Specifically, Ms. Bailey alleged that she had been discriminated against because of her gendered belief, expressed in a number of Tweets, that women are defined by their biological sex and not by their sex which may differ from their sex, and due to opinions she held about a campaign by Stonewall on gender self-identification that she felt was harmful to women.

The Tribunal found that the two beliefs invoked by Ms. Bailey were protected under the EqA as philosophical beliefs. With respect to Ms. Bailey’s opinion of Stonewall, the Tribunal noted that in finding that the creed was protected under the EqA, this did not mean that the Tribunal considered Ms. Bailey to be correct. On the question. Instead, the Court said that “the expression of hostility towards Stonewall’s campaign on the basis of gender identity did not seek to destroy the rights of others in a way that would be undignified. of respect in a democratic society. This was part of the “dust and heat” generated by the conflict of opinion which must nevertheless be tolerated to avoid the greater evil of censorship”.

As in the previous Forstating case, the Court concluded that where a claim relates to the manner in which a belief is manifested rather than the belief itself, a Court must consider whether the belief was appropriately or improperly manifested and it has specifically noted that “belief must not only be well expressed in a democratic society”.

While claims against Stonewall were unsuccessful, the Tribunal ultimately found in this case that Ms Bailey had been both discriminated against and victimized by her chambers because of her beliefs.

Comment

These cases provide insight into the growing difficulties faced by employers in managing and balancing the conflicting rights of their employees.

Employers are advised to ensure that they have appropriate and up-to-date policies in place on matters such as equality and diversity and the use of social media and that these policies are actively communicated to employees. While these policies are important for clearly communicating that all individuals are to be respected and treated equally and for highlighting the standard of conduct expected by the employer, they are also increasingly important in a broader context for help demonstrate employers’ commitment to environmental, social and governance (ESG) issues of which diversity and inclusion is a key component.

When dealing with workplace conflict, employers should take a thoughtful and balanced approach and avoid acting hastily in response to comments they themselves may find objectionable. Clearly, each case will depend on its own particular facts and much will depend on how the particular opinions or beliefs are expressed. It is likely that there will be further case law on these issues over the next few years, with increased emphasis on the balancing exercise to be performed when an individual’s expression of protected belief conflicts with the protections granted to others.

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