Here’s what you need to know about staff with ‘gender critical’ views

28 Jun 2021, 6:00

A landmark judgment has ruled that it is lawful to hold a belief that may offend or shock others, writes Jane Hallas

It is unlikely that Miss Jean Brodie would have cared very much whether she could express her admiration for Mussolini as often as she does in the classic novel by Muriel Spark.

But today college leaders have to be ever mindful of how far they can allow freedom of expression and belief in colleges.

Under Section 4 of the Equality Act 2010, religion or belief is a “protected characteristic”. Section 10 of the Act defines “belief” as any religious or philosophical belief (or a lack of belief).

But how far can an individual express their own beliefs, before it potentially clashes with someone else’s protected characteristic?

Such philosophical as well as legal conundrums can lead to real challenges in colleges, particularly over employment prospects, discrimination claims, as well as the “no-platforming” of individuals.

Where does free, healthy, open debate in a democratic society end and hate speech  ̶  where people feel marginalised, threatened and afraid  ̶  begin?

A landmark judgment from the Employment Appeal Tribunal (EAT) has now ruled that in a free-thinking and democratic society, it is lawful to hold a belief that may offend or shock others.

In Forstater v CDG Europe, Ms Forstater held the belief that gender is an immutable biological fact; a person is born either male or female.

Previously, in 2010, the EAT had given guidance about the types of belief that should be protected, referring to Article 9 of the European Court of Human Rights (ECHR) which allows freedom of thought, conscience and belief. The EAT’s criteria were that:

  • The belief must be genuinely held
  • It must be a belief, not an opinion or viewpoint
  • It must relate to a “weighty and substantial” aspect of human life and behaviour
  • It must attain a certain level of cogency, seriousness, cohesion and importance
  • It must be worthy of respect in a democratic society, not be incompatible with human dignity, and not conflict with the fundamental rights of others.

There has been increasing debate and media coverage over freedom of speech in relation to the issues of gender identity and gender fluidity.

In Ms Forstater’s case, her fixed-term contract was not renewed after she publicised on social media her belief that a trans woman is not in reality a woman.

She also said that while a person can identify as another sex and ask other people to go along with that choice, and can change their legal sex, this does not change their actual, biological sex.

Such postings attracted complaints.

Ms Forstater brought her claim on the basis that she had been discriminated against because of her beliefs. She lost at the Employment Tribunal stage and appealed.

The Employment Appeal Tribunal noted that freedom of expression is one of the essential foundations of a democratic society, which cannot exist without pluralism, tolerance and broadmindedness.

It didn’t think it was for the court to look into the validity of a person’s belief and felt that the state should essentially stay out of such arguments and instead look to make sure there was tolerance on both sides.

Beliefs that upset or shocked others are capable of being protected in a liberal society

Beliefs that were an affront to ECHR principles, such as propagating Nazism or hateful speech against minorities, were not protected.

But beliefs that upset or shocked others are capable of being protected in a liberal society and are capable of respect in a democratic society.

This includes what have been called “gender critical” beliefs.

The ruling essentially underlined the importance of the right to express a belief that is contrary to someone else’s belief and which they find offensive.

It is important to note that this case doesn’t give people freedom to harass or discriminate against members of the transgender community.

College leaders must still ensure that they do not tolerate such actions in the workplace.

However, the court emphasises freedom of speech and belief. For these reasons, it is worth reviewing any relevant training or policies to check they are compatible with this ruling.



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2 Comments

  1. One of the founding texts of ‘Gender Critical’ beliefs is the Transsexual Empire. As well as comparing trans health care to Nazi Scientists experimenting in concentration camps, the book concludes with a guide on how to eliminate ‘transsexualism’ (aka transgender people) from society by removing the platform of trans people to speak for ourselves, and for experts on gender related issues to be replaced with a discussion on women’s rights and the creation of women groups to morally mandate transgender people out of existence and to not ban healthcare but to limit its access to make conditions so hostile that trans people will never leave the closet.
    In the UK we have a moral panic in the mainstream media against trans people, where 161 people prescribed the puberty blocker out of 11,444 referrals is described as giving out blockers like smarties. Where some trans people have been waiting more than 9 years for an initial appointment with no support in the meantime, where trans people are routinely refused access to basic healthcare by GPs. In other words, the rhetoric and ideas of the Transsexual Empire are being played out in British society at the detriment of transgender people.
    The restriction of healthcare for a protected group is a breach of our human rights. To campaign and take legal action against transgender healthcare is a breach of our human rights and is akin to genocide. For a judge to suggest that a movement founded in part on a book that calls for the elimination of transgender people from society as not being akin to Nazism is an affront to human dignity. An ideology that does not see a place in society for a minority group is considered an extremist ideology.
    Many of these groups are not just anti-trans but they promote the reduction of women to their fertility. They attack women who believe that a woman is more than her ability to produce large gametes. They are aligned with hateful organisations such as the LGB Alliance that recently celebrated on Twitter the failure of Canada to pass a law to ban gay conversion therapy.
    Increased violence against the LGBTQ+ community in the way of hate crimes in the UK is a directly linked to increased exposure to ‘Gender Critical’ ideology being peddled in the mainstream press unchallenged.
    Calls about being cancelled in the mainstream media are nonsense; how are you being silenced when you have a column in a mainstream newspaper and regularly feature on the BBC? Where are the transgender voices here? Where are the counter arguments?
    Academic freedom is not a platform to spread hate unchallenged. Arguments must be supported with evidence and face rigorous peer review. Ideas must be challenged in debate. If you seek to present an argument in a university based on ‘everyone has a right to an opinion’ with the flimsiest of evidence and conspiracy theories about Jewish billionaires then it has no place in academia – regardless of your agenda.
    The existence and the right to exist of transgender people should not be up for debate just like you would never allow a debate about the existence and right to exist of Jewish people. And when Fair Play for Women tweets a joke about hiring exterminators to remove an infestation of trans people from the attic, then making that comparison to a different minority who actually did hide in people’s attics is appropriate.

    • Women are entitled to a say in the definition of “woman.”

      Up until now, “woman” has always meant “female human.” Gender ideology seeks to redefine it to mean “feminine human.”

      If that happens, the world’s many unfeminine females no longer have a word to describe ourselves. This is especially frustrating to some of us who have fought our entire lives against femininity, who regard it as a prison, a set of behaviors trained into females, not in any way inherent or inevitable or rooted in brain difference.

      You are not going to rename me a “breeder” without my consent. It’s not going to happen.