Should ‘Gender Critical’ Views about Trans People be Protected in the Workplace? Reconciling Conflicting Human Rights and Discrimination Claims under the Equality Act 2010

Abstract

Some Employment Tribunal claims brought under the Equality Act 2010 (EqA) involve situations where a person’s protection from discrimination on the grounds of a protected characteristic – such as sex, sexual orientation or gender reassignment – comes into conflict with the rights of others, such as, for example, the right to freedom of expression or the right to manifest religion or belief under the European Convention of Human Rights (ECHR), or the protection from discrimination on the ground of religious or philosophical belief under the EqA itself. This article provides a critical account of some of those cases, where claimants have alleged unlawful discrimination relating to ‘gender critical’ views relating to transgender people (and sex/gender more broadly), which they argue constitute protected religious and/or philosophical beliefs. Our aim in this paper is to offer an improved understanding of equality and human rights in employment law, identifying areas where further clarification is needed. We conclude that the courts should maintain a flexible approach, while developing coherent principles that are applied consistently, for balancing and reconciling conflicting rights. This is important in the current context in which there is an ongoing debate, particularly in the discrimination and human rights context, about the extent to which trans people’s rights are adequately protected and whether protecting such rights infringes the rights of others.

Keywords: human rights, discrimination, employment law, equality, transgender, gender critical,