Recently, in our annual employment law update webinar that we held in October, we provided a particular focus on recent transgender cases.

Gender reassignment is a protected characteristic under the Equality Act 2010 and therefore transgender individuals are protected from discrimination on the ground of them being transgender. The decision of Taylor v Jaguar Land Rover Ltd in 2020 clarified that an individual who is non-binary or gender fluid is also protected.

Lots of employers are updating their equality and diversity training, policies and procedures to ensure they make it clear that transgender individuals, including non-binary/gender fluid individuals, are protected from discrimination. Some employers are also encouraging staff to specify their preferred pronouns in email footers as a way of creating a more inclusive environment.

However, there are nine protected characteristics set out in the Equality Act, one of which is religion/belief. Some beliefs that people hold in our society do offend transgender people and could be said to be transphobic. But those same beliefs could be capable of being protected from discrimination. The well-meaning employer that introduces gender-neutral toilets could be accused of discriminating against someone’s belief.

So, how does an employer, like the University of Sussex in this example of struggle, balance these competing rights? In the battle of the protected characteristics i.e. gender reassignment vs religion/belief, which one should win? How does an employer decide and navigate these challenges?

This is a complex and developing area of law and we do not see it getting any more straightforward for employers in the near future. Not all beliefs will be protected by the Equality Act, the tribunals have been busy recently determining what beliefs are and are not protected. Forstater v CGD Europe and Others is one such case. The judgment of the Employment Appeal Tribunal (EAT), in this case, was important as it centred on the importance of the freedom of belief, pluralism, tolerance and the freedom of expression. It noted that the freedom of belief includes the freedom to believe things that others may find shocking and offensive and that all but the most extreme beliefs are worthy of respect in a democratic society. So, an employee who holds an offensive and shocking belief still must be protected from discrimination, even though that belief may discriminate against others.

Mackereth v The Department for Work and Pensions and another, is another case on this topic of competing rights, which relates to a Christian doctor who was dismissed for refusing to address transgender patients by their chosen pronoun. Whether the doctor's beliefs are protected is still yet to be determined because the case is on appeal and we are expecting the EAT's judgment in the New Year. What we do know is that all of these cases are highly fact-specific and will turn on their individual circumstances.

Watch this space for more updates. In the meantime, if you need any advice on this tricky area, please do not hesitate to get in touch with us. We also regularly provide training on respect, inclusion and equality and diversity issues. If you’d like to know more about how we can help refresh your training offering, do let us know.