Gender Issues in the Workplace

Gender Issues in the Workplace

Views in the “transgender debate” are often strongly held (or, in the words of a recent tribunal decision, “rhadamanthine”) . In most workforces of any size, there will be a range of views regarding whether a trans-woman is actually a woman and on related topics such as transgender participation in women’s sport or the use of single-sex facilities, such as changing rooms and toilets. Both poles of the argument are (to an extent) protected by law and the employer’s (difficult) job is not to take sides and to police the ferocity of the debate.

Gender reassignment is a protected characteristic under the Equality Act 2010. This protects people who are proposing to undergo, are undergoing, or have undergone a process or reassigning sex; this process does not have to be conducted under medical supervision. Although the Government stated that the intention of the legislation was to protect people who intend “to live permanently in their non-birth gender” in a 2020 case it was held that the protection extended to someone who identified as gender fluid / non-binary.

Gender-critical belief - the belief that biological sex is real and immutable (and not to be conflated with people’s preferences as to their gender identity) - has been established by as a protected philosophical belief by the Employment Appeal Tribunal decision in 2022 in the case of Forstater -v- CGD Europe.

More recently, in June 2023, the employment tribunal decision in Fahmy v Arts Council England has emphasised the importance for employers of educating their workforce on the sensitivities around the topic and ensuring that debates do not get out of hand. Whereas Maya Forstater was (unlawfully) dismissed for her gender-critical beliefs, Denise Fahmy’s case arose out of comments made by colleagues.

The furore began because the London Community Foundation’s Jubilee Fund (which had been created by the Arts Council) made a grant to the LGB Alliance, a lesbian, gay and bisexual charity which regards the confusion of sex and gender to be a threat to LGB rights. Following social media reaction, the grant was suspended causing an active debate among arts council staff.  

The first major incident requiring legal analysis was a Teams meeting which over 400 staff joined, including Ms Fahmy who was known to hold gender-critical views. During that meeting, the Deputy Chief Executive expressed his personal view that the LGB Alliance “has a history of anti trans-exclusionary activity” and that the grant was “a mistake”, while another employee (whose identity is not disclosed in the judgment) commented that the Arts Council “doesn’t have an obligation to protect people’s views, it has an obligation to protect the welfare of its employees, being trans isn’t an opinion/view its being a person”. After careful deliberation, the tribunal concluded that Ms Fahmy was not harassed for her views in this meeting, given that she had voluntarily attended what she knew would be a contentious debate between competing views. It was also relevant that, when the Deputy Chief Executive checked in with her afterwards, she reassured him that she did not feel “bruised and isolated”.   

However, an email and petition then appeared which referred to “openly discriminatory transphobic staff” (clearly a reference to Ms Fahmy) and one person (who later resigned after being suspended) equated gender-critical views with racist views and asking for staff with gender-critical views to be protected as equivalent to “asking Arts Council what protection will be offered to them as race-critical staff”. These were found to be acts of harassment.

There appears to be a good level of understanding that gender reassignment is a protected characteristic, but much less appreciation that holding gender-critical views is also protected. I have heard HR officers describe gender-critical views as “wrong”, but such views are likely to lead to HR decisions which are wrong in law.

While a person holding gender-critical views can be guilty of harassment if they create an intimidating, hostile, degrading, humiliating or offensive environment based on gender reassignment, it is also possible to harass that person by labelling them as transphobic or a TERF (for those not steeped in the debate, this is a pejorative acronym for Trans Exclusionary Radical Feminist).

A workplace needs to be inclusive, welcoming and respectful, so employers need to police debates which flare up on transgender issues, rather expressing their own views or allowing the argument to descend into abuse. In particular, employees need to be told that gender-critical views are protected and are not to be equated with racism.

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