The Memo: Gender-critical views and the law: What does employment law say?

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Gender-critical views and the law: What does employment law say?

Emily Dunham – 19 February 2024

Last month, Jo Phoenix, a professor of criminology, won her employment tribunal against the Open University. She becomes the latest of a number of women who have been wrongly disciplined by employers for expressing their gender-critical views. But what are gender-critical views, and what does this mean for employment law?

Gender-critical views relate to the belief that biological sex is immutable and distinct from gender identity. Essentially, that people cannot choose their sex, and that genetic sex should take priority over gender identity as a socio-legal category. A person with these views believes that adult human females are women and adult human males are men, and that it is impossible for a person to change sex, as this is determined at conception.

Whatever your beliefs may be around this topic, recent employment tribunals have shown that this belief is considered a philosophical belief for the purposes of the Equality Act 2010, where the belief has met the Grainger principles. This means that individuals are protected from any discrimination they may be subject to as a result of holding that belief.

This is where the story of Jo Phoenix comes in. Phoenix was working at the Open University, and established the ‘Gender Critical Research Network,’ when a group of her colleagues and the organization itself collaborated on an open letter and statements opposing the establishment of the network. The tribunal found that Phoenix had also been excluded from speaking at departmental meetings, and treated differently to her other colleagues because of her views. Phoenix’s tribunal took place in January, and the panel found that she has been constructively unfairly dismissed and discriminated against. In allowing this to happen, the university had breached the implied terms of trust and confidence in her employment contract by failing to provide a suitable working environment. This is the first example of a university being found to have discriminated against a gender-critical employee.

Phoenix isn’t the only example. Maya Forstater was an NGO researcher who lost her job in 2018 for holding gender-critical beliefs. Whilst Forstater originally lost her tribunal with the tribunal applying the Grainger criteria and stating that her views were “not worthy of respect in a democratic society,” the decision was overturned on appeal 18 months later. Other examples include social worker Rachel Meader and student James Esses, whose case was settled out of court after he was thrown off his course for expressing gender-critical views. Also upcoming are three separate claims against the Green Party and two more against the Open University.

Whilst it is established in law that holding gender-critical beliefs is not something for which an employee can be dismissed, this protection is not without its limits. Where people are accused of discriminating against or harassing a transgender person in their workplace, this would, of course, be illegal, as gender reassignment is a personal characteristic protected by law through the Equality Act 2010 – the same piece of law protecting the right to have gender-critical beliefs. In one example, Department of Work and Pensions employee David Mackereth lost his case on the grounds that he intentionally misgendered service users at the Department, which made its decision to dismiss him reasonable.

Put simply, an employee can’t be dismissed simply for holding gender-critical views, on the basis that the beliefs themselves fall under the protection of the Equality Act 2010. There is a line, however, where beliefs become actions. In law, actions based on another person’s personal characteristics are illegal, and rightly so, and employees can be dismissed because of them.