Gender Identity in Employment – Where are we?
The debate around gender identity is a contentious one. Gender identity is a person’s perception and experience of gender and gender roles. Transgender (trans) describes a person whose gender identity does not match the gender they were assigned at birth.
Discrimination against trans people in the workplace remains a significant issue. A report published by the Chartered Institute of Personnel and Development (CIPD) in February 2021 revealed that:
- 55% of trans workers faced conflict in the workplace in the previous 12-month period, including discriminatory behaviour and physical or sexual assault.
- 12% of trans workers experienced unwanted sexual attention and 2% experienced sexual assault over the previous 12-month period.
- 18% of trans workers reported feeling psychologically unsafe at work.
- 50% of workplace conflicts experienced by trans workers remained unresolved.
With that background, employers do need to think about workplace culture and educate employees about acceptable and supportive behaviour towards trans, non-binary, intersex and transitioning colleagues. There are currently 4 employment law cases running through the appeal court system, which are worth noting when considering how your business would, could or should respond to employee views on gender identity.
The Tribunal have stablished that the view that a person’s sex cannot be changed is a belief that is worthy of protection in a democratic society and is a belief protected by the Equality Act 2010. An employer therefore needs to navigate a route that does not simply deny an employee holding that view a voice whilst protecting employees from discrimination and distress.
Mackereth v Department for Work and Pensions and another
The EAT held that a Christian doctor’s belief that a person cannot change their sex/gender was capable of protection as a religious or philosophical belief, but that his dismissal for refusing to use a trans person’s chosen pronouns was not discriminatory
Higgs v Farmor’s School
An employment tribunal has held that a Christian employee’s beliefs that gender cannot be fluid and that an individual cannot change their biological sex or gender were worthy of respect in a democratic society and could therefore be protected beliefs under the Equality Act 2010. However, the employee had not been directly discriminated against or harassed because of those protected beliefs. She had been disciplined and dismissed because of the inflammatory language used in her Facebook posts which could have led readers to believe that she held homophobic and transphobic beliefs
Bailey v Stonewall Equality Ltd and others
An employment tribunal found that barrister Allison Bailey suffered discrimination and victimisation by Garden Court Chambers because of her gender critical philosophical beliefs. The tribunal held that the Equality Act 2010 (EqA 2010) protected not just the belief that women are defined by biological sex rather than gender identity, but also the claimant’s belief that gender theory, as proselytised by Stonewall, is severely detrimental to women and to lesbians. The claims centred around proposed reforms of the Gender Recognition Act 2004 and Stonewall’s campaign in favour of gender self-identity, which Ms Bailey opposed.
The Tribunal found it was discriminatory to publicly tweet that it would launch an investigation into complaints about things Ms Bailey had said on Twitter and it upholding a complaint made about her by Stonewall.
Forstater v CGD Europe and others
An employment tribunal found that the claimant had suffered direct discrimination when the respondent declined to renew her contract because of her expression of gender critical beliefs (including a belief that sex is immutable and should not be conflated with gender identity, and that trans women are men), on Twitter and at work