Gender critical beliefs in the workplace

What are “gender critical” beliefs and how are they protected? Gender critical beliefs typically include the belief that biological sex is immutable, important and not the same as gender identity.

“Religion or belief” is one of the “protected characteristics” set out in equality law, meaning it is unlawful to discriminate against someone because of their philosophical belief (or lack of belief). Although not every belief will amount to a protected philosophical belief for equality law purposes, the Forstater case ruled that gender critical beliefs are capable of protection. That protection is not absolute, however. It will depend on the ways in which such beliefs are “manifested”. This means that you need to consider what is said or done and how this impacts on the legal rights of others. For example, the rights of others not to be discriminated against on the basis of sex or gender reassignment. The Forstater decision found that whilst gender critical beliefs may cause offence and distress to some (typically those holding gender affirmative beliefs), they must be tolerated in a pluralist society, and that manifestation of these beliefs by the employee in question was not objectionable or inappropriate in that context.

Phoenix v the Open University

Joanna Phoenix was employed by the Open University (the “University”) as a Professor in Criminology. She holds gender critical beliefs, which are that she believes sex is real, important, that a person cannot change their sex and that sex is not to be conflated with gender identity. She was found by the employment tribunal to have suffered numerous detriments at work due to her beliefs, including:

• Colleagues saying her beliefs made them feel "palpably uncomfortable" and that gender critical beliefs were inherently transphobic, a word used by them as an insult.
• Another Professor likening Phoenix to a "racist uncle at the Christmas dinner table".
• Events due to include speakers holding gender critical views were cancelled (both at the University and another university where Phoenix was booked to speak) because of concerns about the controversial nature of the events and predicted boycotts.
• When Phoenix co-founded a “Gender Critical Research Network” to bring together “a range of academics and scholars who share a common interest in exploring how sexed bodies come to matter in their respective research fields”, colleagues objected to the network in a publicly-available open letter signed by 368 staff and postgraduate researchers. The letter asked that the University withdraw public support for and affiliation with the network, affirm its position as a trans-inclusive employer and develop a plan for supporting trans students and staff. The letter was widely shared on Twitter and Yammer. It was not removed from the public domain, the University saying that the letter and its contents were an exercise in academic freedom.
• The LGBT+ group issued a statement on Yammer expressing “disappointment, shock and hurt that the [Gender Critical Network] had been formed” and which linked to the open letter.
• There then ensued a “pile on” which created not only a “hostile environment” but also had a “chilling effect on [Phoenix] expressing her gender critical beliefs and carrying out gender critical research”; further it affected her reputational credibility.
• The University issued a statement which expressed concern about harm being caused to trans people but did not acknowledge any harm to members of the Gender Critical Network (nor specifically to Professor Phoenix).

Phoenix’s health deteriorated to the point where she was experiencing intrusive thoughts and PTSD symptoms. She considered herself publicly defamed by University academics and learnt that a targeted campaign was being fomented by a private Facebook group. Phoenix asked the University if the campaign fell within the bullying and harassment policies and whether they might take action. However the University did not investigate possible breaches of the Social Media Policy, or undertake a disciplinary investigation into the alleged perpetrators. It follows that no action was taken by the University. Phoenix received death threats, but the tribunal found no evidence that these were investigated or followed up by the University (for example, by reporting them to the police). She was given “limited support” through the University vetting her emails.

The situation became unbearable for her, and she resigned, successfully claiming constructive unfair dismissal.

Meade v Westminster City Council and Social Work England

Rachel Meade is a social worker who has worked for Westminster City Council for over 20 years, mainly in the Health and Social Care sector. Social Work England (“SWE”) is her regulator and she must adhere to their professional standards.

Meade describes herself as a feminist who holds gender critical views. Her Facebook posts sometimes expressed gender critical beliefs. Her profile was set to “private” and she had around 40 “friends”, of whom 6 or 7 were colleagues at the Council.

A colleague and Facebook friend raised a complaint about some activity on Meade’s Facebook account, including signing petitions, donating money to certain organisations and posting links to organisations and well-known individuals. His complaint was that these posts were discriminatory or supported organisations, causes or individuals that were discriminatory.

The complaint was investigated by SWE. They found that there was a realistic prospect of a finding that her fitness to practise was currently impaired and that the sanction would be a one-year warning published on the public register.

Meade initially said she was “naively unaware” that any posts she had shared or liked, petitions she had signed or organisations to whom she had donated were discriminatory or offensive; she removed all the posts and unfriended organisations or friends that may be seen as critical towards minority groups. She also attended training on working with gender diverse and trans people. In the tribunal she said she had felt under pressure to accept that over 70 posts were discriminatory and just wanted the process to be over – with worries that if she did not accept the SWE sanction then she could lose her job.

When the Council received the SWE report and sanction, Rachel was summoned to a meeting that afternoon, and suspended on gross misconduct charges pending the outcome of a disciplinary investigation. The disciplinary investigation took a year to complete and the outcome was a final written warning. Only then was her suspension from work lifted. She successfully appealed the finding and the warning was withdrawn. She was asked, upon her return to work, not to talk about her gender critical beliefs at work nor in public, including not to post anything on Facebook.

The tribunal found that none of the Facebook posts were transphobic, rather they were legitimate manifestations of Meade’s protected belief. It also found that the Council had impeded Rachel’s right to freedom of expression (for example by requiring her not to talk about her beliefs) and harassed her through the disciplinary process; similarly the prolonged investigation and procedure by SWE were harassment.

Dr S Ali v Reason & Nott

Dr Ali is a member of the Green Party (the “Party”) and holds gender critical beliefs. He was a spokesperson for the Party from February 2016 to February 2022, when his tenure was terminated. Dr Ali was not employed by the Party but the Party, as an unincorporated association, must follow equalities law in its treatment of party members. Dr Ali sued two individuals who were officers of the Party as its representatives, claiming the Party had discriminated against him because of his beliefs. The case had to be brought in the county court, as it was not an employment matter.

Ali alleged numerous acts of discrimination. These included the fact that many Party members, albeit a small minority of the membership, had criticised him on social media because of his gender critical beliefs. Dr Ali felt this amounted to abuse. Whilst it was not a cause of action in itself, as the members were not acting on behalf of the Party, the failure by the party to support him and “stamp it out” was.

A branch of the Party published an open letter, stating his appointment had caused “outrage” from members across the country, and calling for him to be removed from his position because of his “transphobia”. Ali denied transphobia or discriminating against trans people. Again, the failure to challenge the open letter was found to be a failing by the Party.

Meanwhile, senior members of the Party starting manoeuvring to remove Ali as spokesperson by scrutinising the spokesperson selection process, and the acting leader of the Party issued a statement saying “there is now an inconsistency between the sincere promise to fight for trans rights and inclusion in my work and the message sent by the party’s choice of front bench representatives”. Dr Ali was then identified by name in national media.

Dr Ali then ran (unsuccessfully) as a candidate for leader of the Party and as part of his campaign, he advanced “the protection of sex-based rights” (a gender critical position). He was active on social media and in particular on (what was then known as) Twitter, amending his Twitter profile to make it clear that he was not speaking in an official capacity in his role as spokesperson. He posted identical disclaimers on his Facebook page and on his campaign website, in accordance with Party campaign regulations. He was subjected to abuse on these platforms.

He was also the subject of two complaints because of his beliefs. He was invited to a meeting to discuss them but was not given sufficient information to understand the case against him, nor was he given enough time to develop his points. The Party’s Executive Committee subsequently voted to remove him as spokesperson but no formal communication was made of this decision to Dr Ali.

The Party said that he acted and expressed views in breach of their policies (which contained specific principles about trans rights), did not work for party unity and created division; this is why he was removed from his role.

The court found that the Party had dismissed Dr Ali because of the manifestation of his protected belief but that this was a decision they were entitled to make because, as a political party, they were entitled to appoint or demote candidates because of their political beliefs, particularly if their beliefs conflicted with party policy. Bear in mind, however, that dismissing an employee for expressing the same views as Dr Ali may well be discriminatory, if not in the particular environment of party politics. The court found, however, that the procedure followed was unfair and discriminatory.

It is a quirk of the law that no claim can be brought against an unincorporated association, or a service provider, for harassment related to the protected characteristic of religion or belief. The Court found that “being subjected to the invective and manoeuvrings of political opponents are part of the price one risks having to pay for active participation in the life of a political party”. Therefore, Dr Ali’s complaints that the Party failed to protect him from online harassment were not successful. A different decision may well have been reached if this had been an employment situation.

Advice for employers

Support for individuals

If there is a conflict between rights, such as between gender critical and gender affirmative beliefs, it is important to acknowledge both “sides”. In several of the cases above, the Respondent issued messages of support for trans people but did not acknowledge abuse the gender critical person was suffering. It is possible that matters would not have escalated as they did, had the Respondent made it clear that they did not condone or accept the abuse of gender critical people and taken prompt action to address it.

Employers should make sure any interference with the right to freedom of belief and expression is proportionate and in line with the criteria set out in the case of Higgs v Farmor’s School. Plainly suspension from work for one year was completely disproportionate. An apology may be a welcome and proportionate response – notably absent in any of the above cases.

Both offended and offenders may be experiencing poor mental health. If you are offering counselling, rather than just signposting to an employee assistance programme, which is likely to be short-term and generalised, explore with the individual whether private healthcare will cover tailored, longer-term therapy. If that is not available, you may be able to support them with obtaining an NHS referral through their GP.

Risk assessments

Make use of risk assessments. For example, you may need to consider the risks of holding a particular event (including reputational risks). The risk assessment could include the alternatives that you have explored, for example finding new speakers if others have dropped out or been asked not to attend, holding a facilitated conversation between the parties to try to reach a satisfactory compromise, and an explanation of why the decision you reached is the best possible in the circumstances. This transparency and accountability should help to foster better relations with the disgruntled employee(s) but is also good contemporaneous evidence should you need any in the future.

Policies

Examine and where necessary amend your policies (such as your social media, code of conduct, anti-harassment, dignity at work, and equal opportunities policies), ensuring they explain appropriate workplace behaviour. Think broadly about what policies you need to look at – your privacy policy and communications policy may also need a re-vamp.

Explain what moderation you will undertake on internal channels, such as Yammer, so as to ensure no harassing or bullying material is posted or left up. It is critical that moderators are well trained in what are common “dog whistles” and they may benefit from collaborating with EDI network members from the particular characteristic(s) who will be able to give a more nuanced and insightful view. Similarly, it is essential that HR and grievance and disciplinary investigators are well informed on the topics and able confidently and collaboratively to deal with them.

Ensure there are clear rules about what is acceptable online, for example when signing open letters, or sharing petitions about "controversial" topics. Flag that even re-tweeting something can pose a risk, as there is then no control over subsequent comments and you could unwittingly endorse something that contains harmful material. Cover also public-facing work-related scenarios, such as media comments and podcasts. We are often asked whether a blanket ban can be imposed on any posts or comments at all on certain topics. We think not, as it will be a disproportionate interference with the right to freedom of expression and potentially indirectly discriminatory. That is why it is important your policies and people policing them are up to date and clear.

Think broadly also about manifestations you may find in the workplace. These may be very inventive or subtle manifestations, such as painting nails in gender critical “colours” (those of the suffragettes – purple, white and green). Consider including cyber-bullying as a form of bullying or harassment in your dignity at work policy.

Explicitly say that people who hold gender critical views are entitled to protection from harassment or discrimination – much of the abuse suffered by the claimants in these cases was clearly unacceptable and should have been investigated and dealt with appropriately. In a similar way to “deadnaming” or “misgendering” being called out, state explicitly that calling someone “transphobic” or a “terf” because they are gender critical is likely to be discriminatory.

Check your data protection policies to make sure they are aligned – do you mention monitoring (for example of social media) and specify a special condition? In Higgs, the tribunal said that anyone posting on Facebook “effectively loses control of their posts” and thus has no “real expectation of privacy”. As far as we know, LinkedIn hasn’t been considered in the employment tribunal on this point, but as it is more associated with work then posts on this forum would potentially have even less expectation of privacy and pose even more risk to the business. The GDPR pillars of accountability and transparency mean that it is good practice to carry out a data protection impact assessment before doing any trawling on social media in any event.

Develop a policy on the formation of company networks (which also considers their associated social media accounts, podcasts, communications, and any company endorsement) outlining a clear process for approval and operational parameters.

A long-term commitment

It is to be applauded that organisations wish to be trans-inclusive and avoid discrimination against trans people. In doing so, however, they must take care not to perpetrate or permit discrimination of others. In order to achieve this, the advice above will need to be part of an ongoing dialogue with the relevant ERGs and individuals in order for it to be meaningful and effective. This of course comes with a cost (time, emotional, financial) but ultimately the more inclusive and supportive your working culture, the more successful your business will be.

The decision in Joanna Phoenix v The Open University is available here

The decision in R Meade v (1) Westminster City Council & (2) Social Work England is available here

The decision in Dr S Ali v (1) Reason & (2) Nott is available here