Discrimination and gender critical beliefs

An Employment Tribunal has dismissed the claims of two academics against their trade union for discrimination based on their gender critical beliefs.

O’Neill and Wayne directed a film called Adult Human Female and arranged an event for the film to be screened on the University of Edinburgh (‘UoE’) campus. The film expressed gender critical beliefs including that sex is assigned at birth and cannot be changed. 

The trade union considered the film to be transphobic and called for the UoE to cancel the screening. The union’s opposition to the film was publicised via Twitter (now known as X). The union considered that it was acting in accordance with its own policies, and due to concern that the film screening could place trans students at risk on the university campus.

Protests (not organised by the union) took place outside the planned film screening, causing it to be postponed.

The academics brought claims against the union under the Equality Act 2010 claiming that they had been directly discriminated against, and harassed because of their gender critical beliefs.

Employment Tribunal Judgment

The judgment emphasised that the role of an Employment Tribunal is not to enter into the debate on gender but to instead determine the legal issues. It referenced the EAT judgment in Forstater, which acknowledged that the gender debate is one that has generated strong feelings. Please see our case summary for further details on the Forstater case.

The Tribunal explained that it found it difficult to see how the Claimants were subjected to a detriment (i.e. a disadvantage) within the meaning of the Equality Act 2010. In particular, the Claimants were never written to directly; their names were not mentioned by the union when expressing its view publicly on the film; and most of the actions that were claimed to be discriminatory were tweets or re-tweets by the union (which were not sent directly to, or targeted the Claimants).

The Claimants argued that the union’s Tweets, referencing the Claimants’ film as being transphobic, meant that readers would think that the union also considered the Claimants to be transphobic. However, the Tribunal concluded that it was too remote to be regarded as discriminatory.

The Tribunal considered that the reason for the union’s comments against the film being shown on the UoE campus was “because it believed that other members of its union would be offended by some of the content in the Film and could be put at risk and that, under its policies, the Union was entitled and indeed required to protect them as best it could. It also held the view that the UoE had such obligations under its own policies. It did not seek to stop the showing of the Film but only that it not be shown on University premises.”

Reference was also made to the Court of Appeal’s decision in Higgs v Farmor's School and others that the freedom to manifest beliefs is a qualified right and can be limited or restricted to the extent necessary for the protection of the rights and freedoms of others. Please see our case summary for further details on the case.

Ultimately, the Tribunal found that there was no less favourable treatment because of the Claimants’ gender critical beliefs nor were the Claimants subject to any unwanted conduct in relation to their union membership.

Points to note

We note that this case differs from a typical employer/employee relationship as this is a claim where individuals have taken legal action against their trade union. However, the decision provides a useful lesson for employers and other organisations who have duties not to discriminate under the Equality Act 2010. Cases involving conflicting protected characteristics (here philosophical belief and gender reassignment) are often complex, high profile, and require employers to carefully balance competing rights. 

This judgment should give employers the confidence to speak out publicly when the actions taken by an employee in the name of a manifestation of belief, are not in line with its obligations to prevent discrimination and harassment. This is particularly important for public sector employers who have a positive Public Sector Equality Duty to eliminate discrimination, advance equality of opportunity, and foster good relations. For Higher Education employers, obligations with regard to free speech will be under the spotlight as the Government reintroduces and reviews the Higher Education Freedom of Speech Act which was passed in 2023.

When considering addressing issues that involve the public manifestation of a belief employers should:

1. Take care when expressing a position on an individual’s protected belief. This doesn’t mean take no action at all. Employers have a responsibility to prevent discrimination and harassment and should not shy away from taking appropriate action if an employee makes offensive posts that relate to particular protected characteristics. A careful and well thought out approach must be taken. 
2. Ensure that any action taken is proportionate. If an employee has a protected belief any action must be capable of being objectively justified.  

We are experienced supporting employers to navigate through complex and sensitive employee relations issues involving protected beliefs. If you would like further information, please contact a member of our Employment, Pensions & Immigration team who will be happy to help.