Employment
Emma Cocker, Andy Wallis
April 2025
Four years ago, the concept of discrimination based on ‘gender critical’ beliefs was unheard of. However, the 2021 decision of Forstater v CGD Europe & Ors paved the way for protection under the Equality Act 2010 for individuals holding gender critical beliefs.
Despite Forstater, there has been a slew of employment tribunal cases brought by individuals claiming their belief that sex is biological and immutable led their employers to subject them to less favourable treatment. These claimants worked in areas including the NHS, local government, charities, the education sector and even the legal profession. With trans rights supporters claiming that such beliefs are transphobic and hateful, many employers have been confused as to their obligations and fearful of ‘getting it wrong’.
Most recently, in For Women Scotland v The Scottish Ministers it was held that ‘sex’ within the Equality Act 2010 means biological sex, reigniting tensions about the interplay between the rights of trans people and the rights of biological men and women. With the Supreme Court’s decision hot off the press, this article summarises some of the key cases and legal principles that have emerged in recent years, helping employers to be confident in their decisions about balancing the rights of all parties to be treated in a way compliant with the Equality Act 2010 and help them to ensure everyone enjoys dignity and respect at work.
Forstater v CGD Europe & Ors (2022)
Maya Forstater’s consulting contract with the Centre for Global Development was not renewed after she published a series of social media messages describing transgender women as men. She brought claims of discrimination, with the employment tribunal initially ruling against her. However the Employment Appeal Tribunal later found that her beliefs were protected under the Equality Act 2010 because they were “worthy of respect in a democratic society“. At a subsequent hearing, the tribunal concluded Ms Forstater had suffered direct discrimination on the basis of her gender-critical beliefs and she was awarded compensation of over £105,500 including for loss of earnings, injury to feelings, aggravated damages and interest.
Bailey v Stonewall Equality Limited Garden Court Chambers & Ors (2022)
Barrister Allison Bailey claimed she was discriminated against for her gender-critical views after Garden Court chambers concluded that two of her personal tweets, which included gender critical views, potentially breached her professional obligations as a barrister. Bailey had co-founded LGB Alliance, an advocacy group for the rights of lesbian, gay and bisexual people, which opposed the ‘trans extremism’ it said Stonewall promulgated. Ms Bailey complained to colleagues about Garden Chambers becoming a Stonewall Diversity Champion, saying that Stonewall was complicit in a campaign of intimidation of those who questioned gender self-identity. The tribunal found that Garden Court had discriminated against Ms Bailey and she was awarded £22,000 compensation for injury to feelings, plus interest.
Fahmy v Arts Council England (2023)
Denise Fahmy attended an internal teams meeting where hostile comments were made about people who hold gender critical beliefs. This was in the context of a discussion about the award and removal of a grant to LGB Alliance. A petition was later circulated in which further hostile and intimidating comments were made, leading Ms Fahmy to raise a Dignity at Work complaint, which was not upheld. Leeds Employment Tribunal found in favour of Ms Fahmy, concluding that she had been harassed for her gender-critical beliefs, and shortly afterwards, the parties reached settlement for an undisclosed sum.
Phoenix v Open University (2024)
Joanna Phoenix, a professor, co-signed a letter to the Sunday Times in 2019 in which she made her gender critical beliefs known. She, with others, then established the Gender Critical Research Network, an academic research group promoting research into sex and gender from a gender critical perspective. As a result, she was harassed and discriminated against by colleagues, including in one instance the Deputy Head of Department likening her to “the racist uncle at the Christmas dinner table“. The employment tribunal found that her complaints of direct discrimination and harassment were well-founded and that she had been constructively unfairly (and wrongfully) dismissed. Shortly afterwards the parties reached settlement for an undisclosed sum.
Adams v Edinburgh Rape Crisis Centre (2024)
Roz Adams worked as a counsellor at Edinburgh Rape Crisis Centre. Ms Adams held gender critical beliefs and believed that victims of male sexual violence should be able to choose whether to engage with male or female counsellors. In 2021, the centre appointed a trans woman to the post of CEO. Ms Adams warned that giving ambiguous answers to victims who wanted to know the sex of their counsellor could mislead them or lead them to self-exclude from the service. The issue escalated when a colleague announced they were non-binary and changed their name to one that sounded male. Ms Adams asked her manager for clarity on how she should respond if service users asked if the colleague was male, which along with her observations about language used regarding gender critical people (including ‘terf’, bigot and fascist’) led to a deeply flawed disciplinary process against Ms Adams. She resigned, alleging constructive dismissal and discrimination. Delivering a scathing judgment, the tribunal concluded that Ms Adams had been discriminated against and constructively dismissed due to her gender-critical beliefs. Ms Adams was awarded compensation of £68,990 and Edinburgh Rape Crisis Centre was ordered to publish a statement apologising.
Meade v Westminster City Counsel and Social Work England (2024)
Rachel Meade, a social worker, posted on a Facebook profile (that was set to private with approximately 40 friends) expressing her gender critical beliefs. One of Ms Meade’s colleagues complained to the regulator about these posts, alleging that they were transphobic and that Ms Meade had deliberately shared posts containing misinformation about the trans community. Following an investigation into the complaint, Ms Meade was told that there was a reasonable prospect that her Fitness to Practise would be found currently impaired because of her ‘discriminatory activity’ on Facebook. She was told that she could either accept the report and a sanction of a one-year warning or have her case referred to a hearing. She chose the former. Ms Meade’s immediate managers confirmed they had no concerns about her practice but she was subsequently suspended on charges of gross misconduct and ultimately issued with a final written warning. The tribunal found that Ms Meade had been harassed on account of her gender critical beliefs, awarding her over £58,000, including aggravated and exemplary damages, reflecting the extent of the wrongs committed by the Respondents.
Frances v Department of Culture, Media and Sport and the Department of Science, Innovation and Technology (2025)
Ms Frances brought claims of constructive dismissal on the basis of her gender-critical belief and also on a separate philosophical belief in the integrity of the civil service. The claims were settled early, but this case was highly unusual in that there was no confidentiality around the settlement, including its high value (£116,000). It also resulted in public statements from two Whitehall permanent secretaries, committing their respective departments to significant redrawing of policies around sex and gender. This case helped to buck the previous trend of litigating gender critical belief cases until the bitter end, following settlement in the cases of Esses v The Metanoia Institute and the UK Council of Psychotherapy and Favaro v City, University of London.
Higgs v Farmor’s School (2025)
Kristie Higgs, pastoral administrator and work experience manager at a school, was dismissed for posts she made on her Facebook profile opposing the view that ‘gender is fluid and not binary’, contending that same-sex marriage cannot be equated with traditional marriage between a man and a woman. A complaint was made by a parent, leading to MS Higgs’ suspension and eventual dismissal. Ms Higgs claimed direct discrimination and harassment. While her claims were initially dismissed on the basis that it was the manner of expression that had caused her dismissal, not her beliefs themselves, the Employment Appeal Tribunal granted her appeal and remitted the case back to the tribunal. Ms Higgs appealed to the Court of Appeal, which ultimately ruled that Ms Higgs’ dismissal constituted unlawful discrimination on the grounds of religion or belief, emphasising that dismissing an employee merely for expressing a protected belief is unlawful unless the manner of expression is objectionable and the dismissal is a proportionate response.
What should employers be doing in light of these decisions?
It is clear that employers that conduct or condone discrimination against workers with gender critical beliefs are likely to find themselves on the wrong end of an employment tribunal judgment. While this precedent is well established, the recent decision in For Women Scotland has once again brought to the fore the issue of competing protections under the Equality Act 2010. While there is a surfeit of misinformation circulating online that the Supreme Court has ‘removed’ or ‘weakened’ the rights of transgender individuals in favour of those who hold gender critical beliefs, this is incorrect. The law today is the same as it was before last week’s decision and discrimination against trans people for reasons relating to gender reassignment remains unlawful, as does discrimination against those holding gender critical beliefs. However, because of the misrepresentation of the law on this highly emotive topic, many organisations are confused and fearful. Nevertheless, businesses must take a step back from the online noise and focus on a common-sense approach that treats everyone with dignity and respect.
Employers ought to remember that inclusion is for everyone and that there is nothing discriminatory in recognising that the protected characteristics of sex and gender reassignment relate to groups that have different needs and vulnerabilities. Employers should avoid making statements that disagree with the Equality Act 2010 or the Supreme Court judgment, or that favours or prioritises particular groups. This may lead to claims of sex-based harassment and discrimination as well as discrimination on the grounds of religion and belief.
It is possible to treat trans people with dignity and respect while also applying the Equality Act 2010 definition of sex, and remaining compliant with it. While it may be tempting to seek to avoid conflict, making all spaces ‘gender neutral’ is likely to garner complaints, as well as being in breach of workplace health and safety legislation. It may also be tempting to take situations on a case-by-case basis, but this is likely to lead to non-compliance with the Equality Act 2010 and could lead to employment tribunal claims by workers who expect to be able to access single sex spaces for reasons of privacy and dignity.
It is recommended that employers review their policies and training to assess and act on the risk that what they currently have is unlawful. Policies not based on the Equality Act 2010’s definition of sex are likely to result in unlawful conduct for which employers may be sued in the employment tribunal. Clear language should always be used and the normal standards of workplace and professional conduct must be applied to everyone equally. Set clear expectations around conduct and do not tolerate offensive behaviour in the workplace, whatever the protected characteristic in question. Businesses may see a rise in grievances relating to this topic and while proper grievance policies should always be followed, employers should not entertain vexatious or unreasonable complaints and may need to consider invoking their disciplinary policy for repeat offenders.
If you would like support and advice on making certain that your policies and handbooks ensure your employees are protected, please contact a member of our Employment team.
