Should ‘Gender Critical’ Views about Trans People Be Protected as Philosophical Beliefs in the Workplace? Lessons for the Future from Forstater, Mackereth and Higgs

Some Employment Tribunal claims brought under the Equality Act 2010 (EqA) involve situations where a person’s protection from discrimination on the grounds of a protected characteristic—such as sex, sexual orientation or gender reassignment—comes into conflict with the rights of others, such as, for example, the right to freedom of expression or the right to manifest religion or belief under the European Convention of Human Rights (ECHR), or the protection from discrimination on the ground of religious or philosophical belief under the EqA itself. This article provides a critical account of the application of discrimination law in the recent cases of Forstater, Mackereth and Higgs, looking in particular at the application of the Grainger criteria, as well as relevant human rights provisions. Specifically, we offer an analysis of recent cases where claimants have alleged unlawful discrimination relating to ‘gender critical’ views about transgender people (and sex/gender more broadly), which they argue constitute protected religious and/or philosophical beliefs. We argue that while it is necessary that the courts maintain a flexible approach when applying discrimination and human rights law, it is vital that coherent equality principles are applied consistently when reconciling and balancing conflicting rights. This is particularly important in the context of discrimination and human rights, where there is an ongoing debate about the extent to which trans peoples’ rights are adequately protected and whether protecting such rights infringes the rights of others.