Is misgendering someone harassment under the Equality Act 2010?

TL; DR:

• Not all misgendering is harassment.
• Employees have an absolute right hold any particular belief.
• All protected beliefs should be treated equally.
• Employees have the right to manifest their belief and any interference with that right must be proportionate and should normally be the least intrusive measure possible.
• Companies need to revise their Diversity and Inclusion, Harassment and Social Media policies and definitely train staff on them.
• All companies, particularly those providing services to the public, need to be aware of these issues and to have proper policies and training in place.

The answer to the first question about misgendering being harassment is not always. Anyone who claims it is always harassment and/or that the Forstater case says this, is wrong.

As with many legal questions, the answer to whether misgendering is wrong is ‘it depends’. There’s been no law on this subject: no statute nor development of the common law. Possibly the nearest we’ve got is the judgement of Mr Justice Choudhury in the EAT in the case of Forstater v CGD Europe and others. Cases such as Page and Mackereth assist somewhat but don’t provide any definitive rules. In any event, in Forstater, Mr Justice Choudhury’s statements in that case about misgendering were clearly ‘obiter’. That is a word lawyers use to describe parts of a court judgement that were not part of the main decision but were said ‘in passing’ and which do not create binding precedent.

The definition of harassment is found in section 26 of the Equality Act 2010 (‘EqA’). It states that harassment is unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating the others dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.

When an employment tribunal has to decide whether the conduct in question does violate dignity or create an intimidating environment etc. it does so partly objectively and partly subjectively. It will, for example, consider the complainant’s subjective perception was it reasonable for them to have considered their dignity to be violated or that it created an intimidating, hostile, degrading, humiliating or offensive environment. Clearly, trivial acts causing minor upsets should not be caught by the concept of harassment. HR departments will have to discuss the matter with both sides, not automatically take one side or another and conduct the balancing exercise mentioned later in this article.

This subject is bound up with the current debates in Westminster, in the media and on social media about trans rights and gender critical views. Those of us who are following the debates will have noted the current Scottish Government’s proposals to reduce the minimum age a person can apply for a Gender Recognition Certificate from eighteen to sixteen, to remove the need for a medical diagnosis and evidence of having lived for two years in their acquired gender and as such, to allow, what has been called, self-identification. That legislative proposal has been blocked by the Westminster government and the Scottish one is currently going to court on that issue. As we said, there is a lot of debate and comment on this subject – it is a ‘hot potato’. It has, for example, been standard practice for interviewers to ask politicians – what is a woman? That question seems to us to be a proxy for more direct but unasked questions such was where do you stand on trans-rights, single sex exemptions under the EqA, such as toilets, changing rooms and hospital wards, and on the medicalisation of children suffering from gender dysphoria.

In an employment law context, the issues are similarly controversial. This article primarily deals with ‘misgendering’ and with the employment law implications of statements made by employees in support of one side or another. It is an area that will require proportionate balancing of potentially competing rights.

For example, Forstater in the EAT expressly stated that the Gender Recognition Act 2004 doesn’t require anyone to believe something they don’t believe. Therefore, if someone doesn’t believe that a transwoman is a woman, then nothing in the law requires them to believe that. A person has the protected characteristic of gender reassignment at any stage in their journey towards reassignment. That was the decision of the tribunal in the case Ms R Taylor v Jaguar Land Rover Ltd: 1304471/2018.

It is the EqA that creates the protected characteristic of ‘gender reassignment’ not the Gender Recognition Act 2004 (‘GRA’). Those individuals with a gender recognition certificate are a tiny subset of those with the protection of gender reassignment. Regardless of whether someone has such a certificate those with the protected characteristic should not be discriminated against in terms of access to jobs, living accommodation, education, services etc. That said, there are exclusions in the EqA in respect of those with the protected characteristic and it is certainly not the case that, for example, trans individuals have the right to access single sex services provided for the sex of their assigned gender. That issue is a complex one and is beyond the scope of this article.

If a person has the protected characteristic of gender reassignment, then, amongst other things, they are entitled not to suffer harassment on grounds of gender reassignment, or on grounds of protected beliefs about sex and gender. Equally, however, a ‘gender critical’ person, for example, someone who believes that no one is born in the wrong body, that transwomen are men and/or that sex cannot be changed (‘is immutable’ to use the current buzzword), is entitled not to suffer harassment on grounds of her or his gender-critical beliefs. They have ‘protected’ beliefs. This article deals with the employment law implications of one or the other ‘side’ manifesting those beliefs in a way that may be considered to infringe upon the rights of others. This area includes complaints of harassment because of misgendering, companies taking disciplinary action against gender critical employees.

In the Forstater case, the tribunal originally found that Ms Forstater’s belief that sex is real, important and immutable was not worthy of respect in a democratic society. Those words, often abbreviated to WORIADS, are found in the 5th test for whether a belief is protected. Those tests or criteria are found in a case called Grainger. All beliefs that pass the 5 Grainger tests needed to qualify for protection, are of equal status. To be protected a belief must:

1. be genuinely held;

2. not be an opinion or viewpoint based on the present state of information available;

3. be about a weighty and substantial aspect of human life and behaviour;

4. attain a certain level of cogency, seriousness, cohesion and importance; and

5. be worthy of respect in a democratic society and not incompatible with human dignity or in conflict with the fundamental rights of others.

Employers will have legal problems in this area. One recent example was the case Higgs v Farmor’s School. At the time of writing there is no final decision in that case because it has been sent back to the employment tribunal for it to look again at the decision. In that case a Christian pastoral administrator and work experience manager made Facebook comments that were critical of teaching in primary schools about same-sex marriage and gender being a matter of choice and not biology. One could say that she made ‘gender critical’ posts. Following an investigation and disciplinary hearing, she was dismissed for gross misconduct.

Mrs Higgs brought claims of discrimination and harassment on grounds of religion or belief. The original Employment Tribunal dismissed her claims. It found in favour of the school’s view that someone reasonably reading the Facebook posts could reasonably consider that she held transphobic and homophobic views, and not on grounds of her protected beliefs.

Various decisions since Grainger, including Page and Mackereth, have sought to decouple the holding of protected beliefs from their manifestation. Some commentators even claim that although there may be a right to hold a belief, you are not allowed to manifest it – that is not correct. As such, good up to date guidance or advice is necessary as we are aware that even some written guidance, including professionally produced guidance still gets things wrong. This is particularly the case on the issues of having a belief and manifesting it. We won’t digress too much into that subject but will say that the right to hold a religious or other belief is both fundamental and absolute – meaning it can’t be restricted. Equally, the right to manifest that belief is fundamental although it is a qualified right. The right is found in Art 9.2 of the European Convention on Human Rights. The qualification is that the right may only be interfered with in order to protect the rights of another or the wider public interest. This is the balancing exercise referred to elsewhere in this article.

Thus, the restriction must have a legal basis, for example, that it amounts to harassment under the EqA or a public order offence etc. Even then, any restriction must also be necessary in a democratic society in the interests of public safety, or for the protection of public order, health or morals or the rights and freedoms of others. Furthermore, even then the restriction must be proportionate, so you must find the least restrictive restriction possible whilst appropriately balancing countervailing considerations.

There has not been much judicial guidance on the proper way of balancing seemingly conflicting rights – for example, one person’s right to manifest their gender critical views with another’s right not to suffer harassment. The Higgs v Farmor’s School case now provides such guidance.

Farmor School, and of course other organisations and companies, have rights to protect themselves somewhat by enforcing certain workplace standards and rules. For example, the school has rights to set standards for protecting its employees and pupils and its reputation, but its employees have rights under the EqA and rights to freedom of thought, conscience and religion under Article 9 and freedom of expression under Article 10 of the European Convention on Human Rights. The original Farmor tribunal, (summarising hugely), concentrated on the school’s rights and didn’t consider the employee’s rights. By concentrating on the School’s rights the Tribunal didn’t properly engage with the question of whether the School’s actions were because of, or related to, the employee’s beliefs, or their manifestation. In doing so the Tribunal didn’t carry out the necessary balancing exercise between the competing rights. One point we can make is that it sacked Mrs Higgs, it didn’t engage in trying a less restrictive restriction.

The following general test applies to any interference in freedom of expression (such as the imposition of a workplace rule about social media use). The interference must be strictly proportionate to the pursuit of a legitimate aim, and this is answered by considering:

• the objective of the interference is sufficiently important to justify the limitation of a protected right;
• the interference is rationally connected to the purported objective;
• whether a less intrusive means of interference could have been used without compromising the objective; and
• is the impact of the interference on balance proportionate to any benefit obtained?

The above bullet points come from the Supreme Court case of Bank Mellat v Her Majesty’s Treasury [2013] UKSC 39.

The EAT in Farmor v Higgs adopted some suggestions for the factors for an employer to consider when deciding on the competing rights:

• the (i) content; (ii) tone; and (iii) extent of the manifestation;
• the employee’s understanding of the likely audience;
• the nature and extent of the intrusion on others’ rights and any impact on the employer’s ability to run their business;
• whether the employee made clear that the views expressed are personal or whether they might be seen as representing the employer’s views;
• whether there is a potential power imbalance given the nature of the employee’s role and the position of those whose rights are intruded upon;
• the nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients; and
• whether the limitation imposed is the least intrusive measure open to the employer.

The above guidance should be used both by tribunals in their balancing exercise and by HR managers in deciding what to do about, for example, complaints that someone is expressing gender critical views on ‘X’ (the social media site formerly known as Twitter!) or Facebook, etc. If you are a manager tasked with making a decision about what to do about a Facebook or other social media post, you may find useful guidance in the Higgs case – particularly paragraph 94 onwards.

Indeed Tribunals are using Higgs as their guide to these matters. On 27th March 2024 the judgment in the case of Lister v New College Swindon was given. It is case number 1404223/2022. It is a good example of a case where the employer balanced the competing rights of employer and employee. In Mr Lister’s case the last Higgs’ factor (whether the limitation imposed is the least intrusive measure open to the employer) was addressed, at section 4.3.12, as follows:

“Did it [limit the manner in which Mr Lister had manifested his views] do so in a proportionate way? Were there other ways in which it might have done so effectively, which fell short of the drastic measure of dismissal (the last of the Higgs questions)? The difficulty there was the Claimant’s indication that that his behaviour would not have changed going forward. What other steps could the Respondent therefore have taken to avoid the risk of further incidents of harm, discrimination and/or harassment? Dismissal was justified in the Higgs sense on the facts.”

In other words - dismissal was justified given that it was reasonably considered to be the only way or at least the appropriate away to avoid further incidents of harm etc. Had Mr Lister apologised, taken steps to address the issues complained of, and assured the College that his behaviour would change going forward, the question of whether dismissal was appropriate would very likely have been answered in a different manner.

Following the EAT’s decision in Forstater most beliefs short of actual Nazi views will amount to ‘protected beliefs’. There will, therefore, be no place for an employer to make decisions on whether or not it agrees with any given belief: in every case it will have to conduct a proportionality analysis or balancing exercise along the lines of the guidelines above.

Employers should think about the bullet points above and, at the very least, talk to both parties to try to reach a resolution. Having a carefully drafted social media policy will assist employees in knowing what they can and can not say on social media but, in our view, it is not sensible to be too detailed in such a policy. This is because following the Forstater case employees can be more confident in expressing their protected beliefs in the workplace and employers must be more careful about dealing with complaints about certain views being expressed. Even a lengthy social media policy won’t deal with every possible view and may inadvertently actually be discriminatory itself.

Employers can ask their employees, for example, not to positively advocate for one view or another at work and can place some restrictions on linking outside social media usage with work they can’t and shouldn’t police everything. It may be the case that reminders that all Grainger qualifying beliefs are protected, that staff should mark their social media accounts as independent and not reflective of their employer’s views, that the organisation values freedom of speech and diversity of thought together with an expectation of respectful discourse is all that is needed.

On the subject of all Grainger qualifying beliefs being protected, HR managers should ensure that their employer’s policies and training guides do not treat some beliefs as more important than others. Equally, they must not have policies that give preference only to mainstream or popular beliefs.

The same requirement of non-discrimination goes for those providing services to the public. The ‘banning’ of Joanna Cherry by the Strand in Edinburgh was such an example. Forstater v CGD held that Forstater was unlawfully discriminated against on the basis of her philosophical belief that sex is real, important, and immutable. This established conclusively that gender critical beliefs of the kind Joanna Cherry held are protected under the EqA. In the case of the Strand (a theatre venue) it said that it had to cancel Ms Cherry because its staff objected to her etc. Its statement said, “some of our staff have expressed their concerns about Ms Cherry’s views and said that they do not wish to be involved in promoting or staging this show.” Unfortunately for the Strand, there is no justification for direct discrimination. The fact that unlawfully discriminating might have helped the venue avoid issues with staff, sponsors, or others is not a lawful excuse to permit discrimination. This applies just as much to staff refusing to work as to a boycott by customers or suppliers. You can’t just cancel a contract with people because you don’t like their views and that applies whether you are a theatre, a sports ground or a local authority.

Whether it is permitted to compel a gender critical person to use someone’s preferred pronouns, the so called ‘compelled speech’ argument, was partially dealt with in the case of Mackereth v DWP [2022] EAT 99. In that case Mr Mackereth made it clear he would not use transgender clients’ preferred pronouns. However, he resigned before his employer had finished investigating the matter so the tribunal did not have to decide whether it would have been fair to dismiss him. His job was to carry out health assessments for the Department for Work and Pensions (DWP). The case is very fact specific so doesn’t really provide any real guidance for other situations. In the case the appeal court, the EAT, agreed that the tribunal was entitled to find that the DWP’s insistence on using service users’ preferred pronouns, and requiring Dr Mackereth to confirm a willingness to do so, were necessary and proportionate means of achieving the legitimate aims of ensuring transgender service users were treated with respect and in accordance with their rights, and to provide a service that promoted equal opportunities.

This was the balancing exercise that the employer had done and was one which the tribunal agreed with. It is a difficult area for employers as they have to find a balance between competing interests and determine when it is permissible to restrict an employee’s Article 9 rights to manifest their belief in the workplace. As we said earlier, Article 9(2) of the ECHR does permit lawful restrictions on the right to manifest belief. In the Mackereth case one of his ‘manifestations’ was the refusal (or at least the statement that he would refuse) to use the preferred pronouns for trans users of the service. His job was to assess disabled applicants for benefits. The Tribunal described those users as potentially being vulnerable individuals and found, on balance, in favour of the employer.

Managers, particularly HR Managers must be trained on the difference between having a belief and manifesting it. In Forstater, for example, it became clear in cross examination that the manager was particularly concerned with Forstater’s belief not any manifestation of it.

The EAT in Mackereth held that, in an appropriate case, it is possible to dissociate a protected belief from the manifestation of that belief where everyone would be treated in the same way, regardless of their beliefs. Here, it was possible to sever Dr Mackereth’s protected beliefs from the way in which he wanted to manifest them, that is, by not addressing transgender service users with their chosen form of address. Despite his beliefs being protected, it was not unlawful discrimination for his employer to disallow this particular manifestation. Employers can only do so where it is necessary, proportionate and in pursuit of a legitimate aim. Treating people with respect and an overarching commitment to equal opportunities are likely to constitute legitimate aims for this purpose, but the lawfulness of any restrictions will depend on proportionality and the availability of any alternatives that do not impinge on a person’s freedom to manifest their belief. In Mackereth., the EAT found, for example, that in practice there was no practical way of him avoiding transgender users of the service. Whether an employer will be able to establish that its actions were proportionate will be very fact-specific, depending on the workplace and role in question. In this case he was dealing with potentially vulnerable service users in a medical context.

Clearly, some actions amount to harassment. In the 2023 case of Denise Fahmy v The Arts the Council’s deputy chief executive made ‘ill-advised’ comments at an internal meeting critical of a LGB charity. Ms Fahmy made some comments and asked questions that were considered gender critical. Soon afterwards an employee circulated a memo and a petition which were both significantly critical of gender critical people. The tribunal found that that those actions constituted harassment of Ms Fahmy. The Council was held to be liable for the actions of its employees as Section 109(1) of the EqA makes an employer liable for the acts of its employees which were carried out in the course of their employment. The Council’s statutory defence failed – the tribunal saying, ‘the respondent was aware of the need to update its policies and provide appropriate training with regard to issue of belief, but the Tribunal is not satisfied that the respondent has taken all reasonable steps as required in section 109(4) to prevent its employees from harassing someone with the claimant’s protected characteristic’. Clearly, companies need to train their staff and repeat that training. In the case of Fischer v London United Bus Ways, which was heard in July 2023, the tribunal referred to the Gehlen case on the ‘all reasonable steps’ defence to note that training that had been held two years prior to the harassment was ‘stale’.

Conclusion

HR departments should review their diversity and inclusion training to take account of Forstater. They should look at any definition of harassment with a view to ensuring that gender critical people are protected alongside those who are trans and/or trans-allies. Indeed, all protected beliefs should be treated equally.

Companies may get into legal problems if they start imposing compelled speech on individuals or punish those who are gender critical. Suggested wording in respect of your diversity and inclusion policies include a statement that employees don’t have to state their pronouns, that it is acceptable to say that sex and gender are different and that the law states that sex is immutable (Corbett v Corbett 1971 and Chief Constable of West Yorkshire Police v A in 2005).

Returning to your diversity and inclusion policy, you may need to consider explaining that gender critical views need to be respected, that some people believe that people can’t change sex, that nobody is born in the wrong sex, that trans-women are not women and that they don’t believe that some people have an inner gender identity different to their biological sex.

On the subject of diversity and inclusion policies and training something may also need to be said about use of the word ‘Terf’. That can be considered as a term of abuse directed at gender critical people. Such people are entitled not to suffer discrimination or grounds of their beliefs. In some circumstances, use of that word will create an intimidating and hostile and environment. We have seen some gender issues training material presented to a company which included the exhortation to ‘be less Terf’: if a case had been bought for discrimination by a gender critical employee on the receiving end of that training that page would have been ‘page 1 of the bundle’. In the Fahmy case the tribunal noted that although the Arts Council had a ‘dignity at work’ policy its definition of harassment said it was related to “age, gender, race, impairment, religion, nationality or any personal characteristic”. As the tribunal said ‘it is notable that it does not make reference to belief’: make sure yours does.

If you want us to review your policies or training materials or indeed to provide such training, please get in touch. If you just want a view on how to deal with any particular issue, please send an email or give us a call. Read the Taylor v Jaguar Land Rover case report to see how the Tribunal viewed managers who had not been trained on that Company’s Dignity at Work policy (paragraph 14)

If you are a manager tasked with deciding what to do about complaints about an employee’s Facebook or other social media post or profile – we can help. It will be important for you to proactively have policies for the junior staff dealing with Company’s own social media profiles and we can help with this.

We are extremely experienced in employment tribunal discrimination cases and act for both employers and employees. Please contact us if you require advice or tribunal representation in respect of this area of law.

Update

A company imposing a rule or policy against “misgendering” is favouring the ‘gender identity’ side. In so doing it is prioritising one ‘side’ against the other and intimating that the feelings and beliefs of those who do believe in gender identity are more important and/or to be given more priority over the feelings and beliefs of those who do not. It is inherently discriminatory.

In the Denise Fahmy v The Arts Council case and in the Jo Pheonix v The Open University case the fact that colleagues of the complainant had created an internal petition (Fahmy) or a ‘google docs’ ‘Open Letter’ (Pheonix) criticising the gender critical individually, whether expressly or impliedly were both held to be discriminatory. At paragraph 634 of the Pheonix case, published on 22nd January 2024 the tribunal held

“The Claimant had a legitimate expectation that the Respondent would ensure that she worked within a suitable working environment free from discrimination and harassment. We considered Williams as to whether the discriminatory conduct materially influenced the repudiatory breach, and we determine that it did. The Open Letter, WELS/RSSH Statement, the tweets and Yammer posts that amounted to harassment and the discriminatory comment of Dr Drake and Dr Drake’s prohibition against speaking about her cancellation and being labelled a transphobe were all breaches that all contributed to the Claimant’s reason for resignation as they affected the Claimant’s mental health. These were all matters that the Claimant referred to in her resignation letter.”

The decision in the Jo Pheonix v The Open University case in January 2024 (cases 3322700/2021 & 3323841/2021) contains an exemplary explanation of the law on these issues. As above, so does the case of Lister v New College Swindon, in March 2024 (case number 1404223/2022).

Please do not hesitate to contact Steen & Co Employment Solicitors for advice, guidance or training on this subject.