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The right to be gender critical

An Employment Tribunal has again upheld the protected nature of gender critical beliefs

Artillery Row

An Employment Tribunal yesterday held that a social worker was harassed on the basis of her protected gender critical beliefs when Social Work England and Westminster City Council subjected her to a protracted disciplinary process and described her expression of gender critical beliefs as transphobic. This case affirms the law protecting employees in their holding and manifestation of gender critical views and should be seen as a stark warning to employers not to embrace a culture war narrative that gender critical views are by definition transphobic.

Rachel Meade had worked at Westminster City Council since 2001. She had a private Facebook page where she posted messages to about 40 friends, including some colleagues. On the 15th of June 2020, one of those colleagues, Aedon Wolton, complained to Social Work England that Rachel had made transphobic comments on her account, signed petitions “by organisations known to harass the trans community” and donated money to causes “which seek to erode the right of transpeople as enshrined in law”. 

This complaint was investigated. The Facebook posts that were of particular concern to Social Work England included a link to a petition to the International Olympic Committee that male athletes should not compete in female sports and a link to a petition that women have the right to maintain their sex-based protections in the Equality act, including female only spaces.

Rachel was notified that there was a realistic prospect that her fitness to practice would be found to be impaired by virtue of being “conduct of a morally culpable or other disgraceful kind”.

The Case Examiners’ report concluded however that this would not require a public hearing to maintain public confidence in the regulation of social workers, so long as Rachel agreed to accept a one-year warning which would be published on the register as an example to others. 

When this report was forwarded to Westminster City Council, Rachel was suspended on gross misconduct charges. Two of her colleagues were also suspended for failing to report her “discriminatory posts”. Rachel sued for unlawful discrimination and harassment. 

In response, Social Work England and Westminster City Council tried to rely on the distinction between holding a belief and manifesting it, contending that it was the objectionable nature of how Rachel manifested her protected belief that was at issue. This was rejected as an artificial revision that did not reflect the true views of the investigators that Rachels beliefs were inherently discriminatory and transphobic and therefore unacceptable.

The Tribunal considered it self-evident that the investigators considered Rachel’s views unacceptable and that they believed she had no right to manifest them in the workplace. It also concluded that the very belated attempt to distinguish between holding a belief and manifesting it was an attempt to circumvent the Employment Appeal Tribunal’s decision in Forstater that protects gender critical views under the Equality Act. 

The Tribunal was clear that the manifestation of belief is protected unless it is conduct that is so objectionable that interference with it would be a justified and proportionate interference with the right to freedom of expression. Nothing that Rachel did amounted to that. Everything she posted was protected by her rights for freedom of thought and freedom to manifest her beliefs.

The Tribunal did not consider any of her posts had aimed at the destruction of any of the rights of trans people. The fact that some people might be offended does not justify infringing upon her rights. This included the expression of “a legitimate safeguarding concern that some transwomen, retaining male bodies, could exploit their position as self-identified women to have access to young and vulnerable girls”.

The Tribunal concluded that the disciplinary process Rachel was subject to constituted harassment. This was exacerbated by investigators describing her Facebook posts as transphobic. Importantly, it was also held that this independently constituted harassment, a finding that should be taken very seriously by employers in describing gender critical views.

Rachel’s suspension was “wholly excessive and undoubtedly constituted an act of harassment”. The suggestion that she might pose a threat to vulnerable clients, children or adults was an act of harassment.

Finally, it is worth setting out the concluding paragraph of the judgement in full. It should be read by every employer contemplating disciplining an employee for expressing their protected gender critical views:

We consider it wholly inappropriate that an individual such as the Claimant espousing one side of the debate should be labelled discriminatory, transphobic and to pose a potential risk to vulnerable service users. That in effect equates her views as being equivalent to an employee/social worker espousing racially discriminatory or homophobic views. The opinions expressed by the Claimant could not sensibly be viewed as being transphobic when properly considered in their full context from an objective perspective, but rather her expressing an opinion contrary to the interpretation of legislation, or perhaps more accurately the amendment to existing legislation, advocated for by trans lobbying groups to include, but not limited to, Stonewall.

The Tribunal was heavily critical of the investigators for their clear failure to do due diligence to ensure that the complaint against Rachel was not malicious. This should be seen as a warning to employers not to unquestioningly investigate every complaint made by hard-line activists. Some complaints should be dismissed out of hand.

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