Defending Employment and Regulatory Claims Relating to Gender-Critical Beliefs and Transgender Issues

Defending Employment and Regulatory Claims Relating to Gender-Critical Beliefs and Transgender Issues

Disputes involving gender identity, gender-critical beliefs and freedom of expression have become increasingly common across UK workplaces and regulated professions. Employees who articulate views grounded in biological sex, who challenge aspects of gender identity ideology, or who raise concerns about the implications for women’s rights or safeguarding, often face internal disciplinary processes, suspension, dismissal or even regulatory investigation.

Employers are expected to balance competing rights under the Equality Act 2010 (“EqA”), navigate the Human Rights Act 1998 (“HRA”), and manage workplace relations without engaging in unlawful discrimination. In parallel, employees must often defend their right to express mainstream, academically supported or religiously informed views, even where colleagues strongly disagree or claim to be offended.

This article examines the legal framework underpinning these disputes, explains how employers and regulators must approach such cases, outlines how employees can defend themselves, and provides a detailed analysis of the key case law shaping this area. It also explores the interaction between gender-critical and religious beliefs, particularly Christian beliefs, and highlights how these may strengthen a claim – while also noting the limits to that protection.

1. Legal Framework: Gender-Critical Beliefs Under the Equality Act 2010

Section 10 EqA protects “religion or belief”, including philosophical beliefs that meet the Grainger criteria (which require the belief to be serious, cogent, worthy of respect, and genuinely held). Since the Employment Appeal Tribunal’s decision in Forstater v CGD Europe (2021), it is firmly established that gender-critical beliefs fall within this protection. These beliefs include the conviction that sex is biological, immutable and distinct from gender identity.

Employees who experience adverse treatment because of such beliefs can pursue claims for:

• Direct discrimination
  This occurs where the employee is treated less favourably because of the protected belief itself. Decision-maker hostility to the belief (or perceived belief) is often key evidence.
• Indirect discrimination
  Overly broad equality, dignity or “respect” policies can indirectly disadvantage those who express gender-critical views, especially where the policy is applied asymmetrically.
• Harassment
  A hostile or humiliating environment created by colleagues’ or managers’ reactions to gender-critical views can amount to harassment under the EqA.
• Victimisation
  Employees often suffer further detriment after complaining about belief discrimination or raising legitimate concerns.

These claims apply to employees, workers, contractors, academics, and members of partnerships or chambers.

2. How Employers Should Approach Disciplining Gender-Critical Expression

Where a complaint is raised about an employee’s expression of gender-critical views, employers must demonstrate that any disciplinary action is:

1. Not because of the belief itself
   Action cannot lawfully be taken merely because colleagues disagree or find the view “offensive”.
2. Directed only at the manner of expression, if inappropriate
   The employer must show that conduct, not belief, crossed a legitimate boundary—e.g. targeted or abusive behaviour.
3. Proportionate under Articles 9 and 10 ECHR
   The Higgs judgment confirms that disciplinary measures interfering with free expression must be necessary and proportionate.
4. Based on a rigorous balancing of rights
   Employers must weigh the employee’s rights against the rights of others. A failure to carry out this analysis has caused many employers to lose tribunal claims.
5. Conducted through a fair and even-handed process
   Investigations must be objective, must not assume that gender-critical views are inherently harmful, and must explore the full factual background.

Many existing HR policies, designed before Forstater, incorrectly suggest that causing offence is enough to justify sanction. The modern case law shows clearly that it is not.

3. Defending Claims as an Employee

Employees facing allegations of inappropriate or offensive expression should:

• Establish the protected nature of their belief
  Demonstrate that the belief is serious, cogent, widely acknowledged, articulated in good faith and not motivated by hostility.
• Contextualise their expression
  Provide clear evidence of when, where and how comments were made. Courts consistently note that tone, platform and audience matter.
• Show that their conduct remained within acceptable boundaries
  Robust or forthright speech is protected, but targeted harassment is not. Tribunals examine these distinctions carefully.
• Highlight procedural flaws or failures of proportionality
  An employer’s failure to apply the Article 9–10 balancing test is often decisive and renders disciplinary action unlawful.
• Evidence inconsistent or ideologically one-sided treatment
  Employees frequently show that pro-gender-identity views were tolerated, even when expressed aggressively, while gender-critical views were penalised.

4. The Role of Christian and Religious Beliefs in Supporting Gender-Critical Claims

Gender-critical beliefs often intersect with religious beliefs, particularly Christian doctrines regarding the created order, the nature of sex, and the distinction between men and women.

How Religious Beliefs Assist a Claim

• Dual protection:
  Employees may claim discrimination on both “belief” and “religion” grounds. This increases the scrutiny on employers and makes dismissal harder to justify.
• Strong Article 9 protection:
  Religious expression enjoys heightened protection under the ECHR, requiring employers to justify any interference with great care.
• Coherence and sincerity:
  Religious frameworks can demonstrate that an employee’s views are part of a broader, longstanding belief system.
• Evidence of respectful intention:
  Many employees emphasise religious motivations for treating all people with dignity, helping show that any disagreement is principled rather than hostile.

Limits to the Protection

• Religious belief does not justify discriminatory conduct:
  Beliefs are protected, but actions that target or demean individuals may lose protection.
• Expression must remain proportionate:
  Employers can restrict manifestations of belief where necessary for safeguarding or legitimate business needs, provided they act proportionately.
• Not all refusals can be accommodated:
  The Mackereth case shows that some roles require a particular form of expression (e.g. pronoun usage) due to statutory duties or safeguarding considerations.

5. Detailed Case Law Analysis

The following cases form the core legal landscape governing gender-critical belief disputes.

5.1 Forstater v CGD Europe (2021–2022)

Protected status of gender-critical beliefs

The Employment Appeal Tribunal (“EAT”) held that gender-critical beliefs satisfy the Grainger criteria and are “widely shared”. The EAT rejected arguments that such beliefs are inherently harmful or equivalent to extremist ideologies.

Expression is protected even if offensive

The EAT stressed that causing offence does not remove protection—only beliefs that fundamentally undermine human dignity fall outside EqA protection.

Discrimination and victimisation on remittal

The 2022 tribunal decision found direct discrimination and victimisation, emphasising that:

• colleagues’ disapproval of her beliefs materially influenced decisions not to renew her contract;
• criticism labelled as “transphobic” was based on disagreement with her protected beliefs.

Forstater remains the leading authority.

5.2 Higgs v Farmor’s School (Court of Appeal 2023)

Misapplication of equality duties

The Court of Appeal held the school conflated holding a belief with wrongful conduct, failing to investigate properly.

Proportionality test

The Court laid down a mandatory multi-stage test for assessing whether restrictions on expression are lawful:

1. Is the belief protected?
2. What legitimate aim justifies interference?
3. Is the interference necessary?
4. Is the restriction proportionate given context, tone, role and evidence of harm?

Protection for robust speech

Even strong, provocative or unpopular statements may be protected.

This case is essential where employees face disciplinary action over social media posts.

5.3 Miller v College of Policing (Court of Appeal 2021)

Chilling effect on gender-critical expression

Recording Mr Miller’s tweets as a “non-crime hate incident” was held to unlawfully interfere with his Article 10 rights.

Offence is insufficient

The Court noted that preventing lawful speech because others may be offended breaches fundamental principles of free expression.

This case is especially relevant when employers rely on “offence” or “distress” as grounds for action.

5.4 Phoenix v The Open University (2023)

Hostile environment

The tribunal found that an academic expressing gender-critical views was subjected to ostracism and hostility by colleagues.

Failure to protect

The employer failed to protect her academic freedom and her belief rights, amounting to discrimination and harassment.

The case demonstrates that employers may be liable for failing to shield belief-holders from ideological hostility.

5.5 Mackereth v DWP (2022 EAT)

Beliefs protected but restrictions upheld

While Dr Mackereth’s Christian and gender-critical beliefs were protected, the requirement to use preferred pronouns was considered a proportionate step in the context of public services and vulnerable service users.

This case is fact-specific and is often distinguished by employees.

5.6 Bailey v Stonewall, Garden Court Chambers & BSB (2022)

Victimisation due to protected beliefs

Allison Bailey, a gender-critical barrister, succeeded in her victimisation claim where her chambers responded adversely to her protected beliefs and her role in establishing LGB Alliance.

Institutional alignment risks

The judgment highlights the dangers of adopting external advocacy groups’ positions without safeguarding pluralism.

5.7 Korte v Norfolk County Council (2023)

Punished for legitimate debate

The tribunal found the employer discriminated against an employee whose gender-critical contributions were reasoned, respectful and relevant.

Ideological imbalance

Evidence showed an organisational preference for a single ideological viewpoint that stifled lawful expression.

5.8 Omooba v Leicester Theatre Trust (2020)

Protected religious beliefs

The claimant’s Christian views on sexuality were protected, though her claim ultimately failed for factual reasons relating to role performance.

This case illustrates the boundary between protected belief and job-specific constraints.

6. Regulatory Implications

Regulated professionals (including solicitors, doctors, teachers and social workers) may face complaints alleging that their expression of gender-critical or religious beliefs breaches professional codes. Regulators must:

• Respect Articles 9 and 10 ECHR;
• Distinguish belief from conduct;
• Show evidence of genuine risk of harm; and
• Demonstrate that any sanction is necessary and proportionate.

Recent trends show increased caution from regulators, many of whom now accept that gender-critical expression, without more, does not justify disciplinary action.

7. The Recent UK Supreme Court Ruling on the Definition of “Woman”: Implications for Employment and Regulation

A significant new development in this area is the recent UK Supreme Court judgment confirming that, for the purposes of equality law, the legal definition of “woman” is based on biological sex. The Court held explicitly that “the concept of sex is binary”, while also cautioning that this should not be taken as a victory for one group over another.

The ruling arose from litigation between the Scottish Government and For Women Scotland concerning whether a transgender woman holding a Gender Recognition Certificate (“GRC”) should be treated as female for the purposes of sex-based protections under the Equality Act 2010.

The Scottish Government had argued that a GRC entitled its holder to sex-based protections, while For Women Scotland contended that such protections apply only to those who are biologically female.

The Supreme Court sided with For Women Scotland, confirming that:

• Sex-based protections in the Equality Act refer to biological sex, not gender identity or acquired gender through a GRC.
• A transgender person with a GRC remains legally protected from discrimination under the protected characteristic of gender reassignment, but does not change sex-based eligibility for single-sex exceptions.
• The Court emphasised that this ruling should not be “weaponised” as a victory of one rights group over another and reaffirmed that transgender people retain robust legal protections against discrimination.

This decision follows what For Women Scotland described as a “long road” of litigation, while Scottish Trans, a transgender rights organisation, urged the public “not to panic”, emphasising that many protections remain in place. The Scottish Government stated that it had acted “in good faith” and would work with Westminster to understand the ruling’s full implications.

Implications for Employers

This judgment has practical consequences for employers, especially those with policies dealing with:

• single-sex facilities;
• sex-specific roles or occupational requirements;
• safeguarding duties;
• maternity-related roles;
• competitions, physical fitness roles or activities where sex matters; and
• data collection linked to sex-based reporting.

Clearer Legal Basis for Sex-Based Policies

The ruling provides employers with firmer statutory grounding when implementing sex-based distinctions. Where employers had previously been cautious—sometimes fearful of discrimination claims—they now have the Court’s highest authority confirming that:

• policies based on biological sex are lawful where they meet the statutory criteria;
• employers may rely on Schedule 3 and Schedule 9 of the EqA to operate single-sex services and sex-specific occupational requirements; and
• sex cannot be redefined by internal policy to mean gender identity where legislation says otherwise.

Reduced Legal Ambiguity for Gender-Critical Employees

The judgment also indirectly strengthens many gender-critical discrimination claims because it confirms the objective truth of a core gender-critical belief: that sex is binary and based on biology.

This makes it harder for employers to assert that gender-critical statements—even if contentious—are inherently unreasonable or incompatible with equality duties. Tribunals are increasingly likely to view such statements as:

• consistent with established law;
• part of legitimate public discourse; and
• aligned with ECHR-protected beliefs.

Where employers have disciplined staff for expressing mainstream, legally accurate statements about biological sex, this ruling significantly undermines the justification for doing so.

Implications for Employees

Employees who have been disciplined, dismissed or subjected to hostile work environments for asserting biological-sex-based positions will likely find:

• stronger evidential support for their beliefs;
• easier demonstration that their views are protected under Forstater;
• greater difficulty for employers attempting to justify restrictions on their expression; and
• clearer defences in regulatory and professional misconduct proceedings.

Employees are also better positioned to challenge internal policies that disregard biological sex or compel adherence to gender-identity-based terminology.

Implications for Regulators

Many professional regulators—including the SRA, NMC, GMC, HCPC, teaching regulators and social work bodies – have faced contentious complaints in recent years relating to gender-critical speech.

The Supreme Court’s ruling places regulators under renewed obligation to:

• ensure that disciplinary investigations reflect the legal definition of sex;
• recognise that statements about the binary nature of sex are legally accurate, not inherently offensive or discriminatory;
• avoid misinterpreting lawful beliefs as professional misconduct;
• shield protected expression unless it crosses clearly into harassment, abuse or discriminatory conduct; and
• apply the Article 9–10 proportionality assessment rigorously.

This ruling may make it harder for regulators to pursue fitness-to-practise or conduct cases based solely on gender-critical expression, unless actual harm, targeted harassment or severe misconduct can be shown.

A New Era of Legal Clarity

For many years, employers and regulators have operated in an environment marked by conceptual ambiguity around sex, gender and protected characteristics. The Supreme Court’s judgment brings significant clarity by confirming:

• that sex is binary in law;
• that biological sex governs eligibility for sex-based protections;
• that gender identity does not override sex in the context of the Equality Act; and
• that transgender people remain legally protected from discrimination under other equality characteristics.

This clarity will likely reduce litigation caused by conceptual confusion and provide firmer foundations for resolving workplace disputes.

8. Conclusion

UK law provides robust protection for employees who hold and express gender-critical beliefs, whether grounded in biology, academic research, or religious conviction. The case law confirms that such beliefs are protected, that their expression is also protected, and that employers must carry out a detailed and objective rights-balancing exercise before imposing any sanction.

Employees facing disciplinary or regulatory action should seek experienced legal advice at an early stage. The Jonathan Lea Network advises clients in this evolving area, assisting both individuals and employers in navigating sensitive disputes with clarity and confidence.

If you require assistance defending a belief-related claim or responding to disciplinary or regulatory proceedings, our team can provide expert guidance.

Please email wewillhelp@jonathanlea.net providing us with any relevant information ensuring that any call we have is as productive as possible or call us on 01444 708640. After this call, we can then email you a scope of work, fee estimate (or fixed fee quote if possible), and confirmation of any other points or information mentioned on the call.

 

 

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This article is intended for general information only, applies to the law at the time of publication, is not specific to the facts of your case and is not intended to be a replacement for legal advice. It is recommended that specific professional advice is sought before relying on any of the information given. © Jonathan Lea Limited.