Following the decision by the Employment Appeal Tribunal (EAT) in Forstater v CGD Europe and others UKEAT/0105/20/JOJ; July/August 2021 Legal Action 5, there have now been two first instance decisions in which employment tribunals have considered whether claimants have been subjected to discrimination and victimisation because of what are known as gender-critical beliefs – broadly, that sex is biologically immutable, that it is not possible to change sex, and that sex and gender should not be conflated. As readers may recall, the EAT had held that Ms Forstater’s belief fell within the scope of Equality Act (EA) 2010 s10 and so was protected by the Act.

The first decision came in the case of Ms Forstater herself (Forstater v CGD Europe and others ET Case No 2200909/2019, 6 July 2022). She worked as a researcher and writer for a public policy think tank CGD under a consultancy agreement – she was a visiting fellow. CGD had also discussed offering her full-time employment in the future. During her time with CGD, she developed an interest in gender recognition issues, and particularly the legal provisions allowing self-identification of gender and the proposed changes to this. She was also active on social media. As well as tweeting her views, she discussed them in the office and brought material into the office.

Ultimately, her visiting fellowship was not renewed and she was not offered the full-time employment that she was expecting. She brought proceedings alleging direct discrimination on the basis of her gender-critical beliefs as well as harassment, indirect discrimination and victimisation.

CGD argued that it was not the belief itself that was the basis of its treatment of her, but rather an unreasonable and inappropriate manifestation of that belief, by way of her Twitter activity. Case law in respect of religion and belief provides that when considering the reason why the treatment occurred, the tribunal can consider that it is not because of the manifestation of the religion or belief but because of the inappropriate manifestation of it – in which case it will not amount to direct discrimination (see, for example, Wasteney v East London NHS Foundation Trust UKEAT/0157/15/LA).

The employment tribunal upheld Ms Forstater’s claims for direct discrimination in respect of the failure to renew the fellowship and offer her employment, and for victimisation in respect of removing her from the website following an interview that she did for the Sunday Times. The remainder of her claims were dismissed.

The majority view of the tribunal was that she had never unreasonably expressed her belief; the minority view was that she had done so only once. Unanimously, however, the tribunal found that, overall, the threshold had not been reached for this manifestation of Ms Forstater’s belief to be objectively offensive such as to warrant detrimental action by CGD. This was particularly in light of the fact that Ms Forstater had agreed to the steps asked of her – she had added a disclaimer to her Twitter account, had said that she would tweet less on her main account and would concentrate on tax issues, and had agreed not to initiate discussions on her beliefs in the office. These would have substantially mitigated the risks in the office.

A remedy hearing will be held to determine the damages that flow from the decision.

The second case was that of Bailey v Stonewall Equality Ltd and others Case No 2202172/2020, 25 July 2022. Ms Bailey, who is a criminal barrister practising from Garden Court Chambers (GCC), had gender-critical beliefs (set out extensively at para 279 of the decision). These included beliefs about Stonewall’s campaign on gender self-identification. The respondents accepted that the claimant’s beliefs on sex were protected but not that those on Stonewall were (which included beliefs on campaigning on gender reform). She brought EA 2010 claims of direct discrimination, indirect discrimination and victimisation against GCC and Stonewall, which, she alleged, had instructed or caused some of GCC’s actions or had attempted to induce or cause those actions.

The list of complaints alleged was lengthy and summarised at the end of the tribunal decision, which runs to 117 pages, but in brief: in December 2018, Ms Bailey complained about GCC becoming a Stonewall Diversity Champion and explained her concern related to belief about who was a woman. She claimed that because of that complaint, she was given less work, leading to a fall in income the following year.

In October 2019, she was involved in setting up the Lesbian Gay Alliance. Her tweets about this led to a number of complaints being made to GCC about the incompatibility of her views with trans rights. GCC said that it would investigate this. Stonewall also complained. Ms Bailey alleged that this was engineered by another member of GCC, who supported trans rights. GCC’s investigation concluded that two of the tweets were likely to offend the Bar Standards Board’s (BSB’s) Code of Conduct for Barristers by alleging criminality without foundation, and asked her to remove them. Ms Bailey alleged that it was detrimental to her to suggest that these complaints needed investigation; to have tweeted from chambers a response to indicate that her tweets were being investigated; and that the conclusion of the investigation was wrong. She also alleged a detriment by delay in responding to a subject access request for disclosure of documents.

The tribunal found that all the claimant’s beliefs were protected, not just the belief relating to sex. It dismissed all claims against Stonewall. It went on to dismiss the majority of the claims against GCC on the basis of its findings of fact. It did, however, uphold three claims: it found that there had been discrimination in respect of the response that GCC put out regarding Ms Bailey’s tweets (ie, that it was going to investigate), and both discrimination and victimisation in GCC’s conclusion that there was a potential breach of the BSB code. It awarded damages for injury to feelings at £22,000, with £2,000 being aggravated damages.

Both these decisions are first instance decisions, but they illustrate the application of existing case law in the context of gender-critical beliefs. Both cases were largely dependent on their findings of fact, as with any case. It is not known whether there will be an appeal in Forstater but GCC has said it is reviewing the Bailey judgment with a view to appeal.

This is a contentious area of public debate and it is likely that there will be more litigation to come.