Westminster city council and Social Work England last week became the latest to join a list of organisations – including Arts Council England, a barristers’ chambers and a thinktank – found to have discriminated against a female worker because of their gender-critical beliefs.
The social worker Rachel Meade’s win against the council and her profession’s regulator means she joins a select but growing group of gender-critical feminists who have successfully brought discrimination claims on the basis of their beliefs.
Gender-critical feminists believe sex is biological and cannot be changed, and disagree with trans rights activists who say gender identity should be given priority in terms of law-making and policy. Clashes in workplaces – in some cases with those who regard the focus on biological sex as transphobic – have led to a string of employment tribunals.
On Monday, a tribunal began hearing a constructive dismissal claim from Roz Adams against Edinburgh Rape Crisis Centre. Next month, Kenny McBride’s case against the Scottish government is due to be heard in Glasgow, while judgments are pending in a claim from Prof Jo Phoenix against the Open University and that of the Green party’s former deputy leader Shahrar Ali against the party.
In all four cases – and more in the pipeline – the claimants argue they were discriminated against because they hold gender-critical beliefs.
They hope to follow in the footsteps of the barrister Allison Bailey, and of the researcher Maya Forstater who obtained a landmark judgment in 2021 that her gender-critical beliefs were a protected philosophical belief under the Equality Act. The campaign group Sex Matters, founded by Forstater, has identified at least 19 current cases.
After the Meade case last week, which like several others involved disciplinary action being initiated against an employee as a result of social media postings, Westminster council said it would “consider what changes we need to make”. For the local authority it comes too late to prevent a payout, but other employers may need to learn from it.
Lucy Lewis, a partner at the law firm Lewis Silkin, said that on such a politically charged issue, employers could feel they must act quickly after a complaint.
“Because this has become a politically toxic issue, there’s a sort of temptation [on the part of employers] to take a kneejerk reaction rather than the considered view of actually, what is the impact, is there another way we can address this [other than disciplinary proceedings or suspension]?
“People are being influenced by the very public and political dialogue on this and actually there’s value in just taking a step back and understanding all the factors.”
Georgina Calvert-Lee, an employment and equality barrister at Bellevue Law, agreed that the wider debate – in which gender-critical feminists and advocates of transgender rights have been at loggerheads – may have influenced employers, but said they must adjust their behaviour in light of the case law.
“What Forstater and Bailey have done is they’ve set this very strong precedent of tolerance,” Calvert-Lee said.
“Above all, in a pluralistic society, which is what we want, you have to accept that people are going to have different views and some people are going to find their colleagues’ views completely obnoxious – but nevertheless protected because freedom of speech is something that … has been really promoted and underlined.
“It’s always been there but it’s been sort of forgotten in some of these culture wars.”
After settling a case with a gender-critical volunteer, Katie Alcock, Girlguiding UK said it remained “a home for trans people” but added: “We agree that sex and gender are different, and will reflect this in the language we use.”
After another case that was settled out of court, brought by the student James Esses, who was thrown off his course for expressing gender-critical views, the UK Council for Psychotherapy conceded it was a valid professional belief that children suffering from gender dysphoria should receive counselling rather than medical intervention and people should not be discriminated against for such beliefs. Esses’ case against the Metanoia Institute continues.
Calvert-Lee said the cases to date showed the importance of employers training staff “about what is acceptable and what’s not and what amounts to harassment and what probably doesn’t – the sort of respect they should give to each other”, as well as giving training to those staff investigating complaints.
“Whenever there’s some sort of complaint which involves a belief that’s basically pitted against another belief, they [the investigator] have to be completely neutral,” she said. “It’s not on for the investigator to come to it very overtly with their own value judgment.”
The tribunals have made clear that it is not a free-for-all but a balancing exercise. For instance, David Mackereth – an outlier in that he lost his case based on gender-critical beliefs – was found to have crossed the line by misgendering service users at the Department for Work and Pensions, making its decision to dismiss him reasonable.
Calvert-Lee believes the recent increase in cases will ultimately be a blip rather than a growing trend, as workplaces become more aware of the need to handle complaints and concerns more carefully.
The events that led to Meade’s claim came “just weeks before the Forstater employment appeal tribunal decision was given”, she said, and the results of the Forstater and Bailey cases would mean “employers will have training, and so they’re likely to fall off, you’re likely to have fewer cases”.
Lewis said there would always be “bad eggs” but compared the situation to legal cases on manifestations of religious belief at work, such as wearing a cross.
“You have a flurry of cases and people that aren’t lawyers … wonder why those cases go away,” she said. “In a common law system like ours, you have cases that set out some of the principles employment tribunals need to consider and then really good organisations like the CIPD [Chartered Institute of Personnel and Development] take all that reasoning, they give advice and training to employers and then employers are clear about what they need to do, how they should manage this kind of conflict in the workplace.”
She added that the media attention afforded to gender-critical cases perhaps suggested that they were more common than they really were. In fact, she suggested there were likely to be a greater number of claims brought by transgender people alleging harm, though many go unreported.
“The overwhelming majority of employers are not setting out to discriminate; they’re not just thinking ‘well all people with gender-critical views are bad, so we’re just going to get rid of them’,” said Lewis.
“They just have got strong alternative views in the workplace and they haven’t known how to navigate through that conflict.”
