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In recent weeks, there have been a couple of big gender identity stories to debate, which will undoubtedly have sparked debate in the workplace and strong views from all sides.
Firstly, Virgin Atlantic announced an update to its gender identity and uniform policy which allows its pilots, cabin crew and ground staff to choose the uniform that “expresses how they identify or present themselves“. Previously, women had to wear red and men wore burgundy. Meanwhile, British Rowing has revised its Trans and Non-Binary Inclusion Competition Policy and Procedures, supporting trans and non-binary individuals who wish to participate in rowing without competing to “self-identify without any restriction”. It also sets out the “process for determining eligibility to compete in a category that does not match a trans or non-binary competitor’s birth sex”.
Whatever your personal views on the subject of gender identity and fluidity, as an employer you will already be aware of the strength of feeling such issues can generate.
A rising number of claims are coming to tribunal where there is a reference to sex and gender identity, where gender critical beliefs are being argued to be protected under the Equality Act 2010.
Broadly speaking, a “gender critical” belief is one that maintains a person cannot change their sex or gender. One case in point is that of Forstater v CGD (June 2021), in which Ms Forstater claimed that her gender critical beliefs were capable of protection under the Equality Act. She told the employment tribunal that she holds the belief that whilst she would respect a person who chose to identify as another sex, she maintains that self-identification or being in receipt of a gender recognition certificate (GRC), does not change their actual sex.
In that case, the tribunal found against Ms Forstater, on the grounds that her view was not worthy of respect in a democratic society and conflicted with fundamental rights of others. This was despite the acknowledgement that she had been subjected to direct discrimination for expressing her views, which she had done publicly on social media. Indeed, her contract of employment had not been renewed because of her expressing her views. However, the employment appeal tribunal (EAT) came to a different conclusion and found in her favour, signalling that those who hold gender critical beliefs do have protection under the Equality Act.
The challenge for employers is to adhere strictly to the legalities and not to allow their own beliefs to influence how they manage conflict between two protected characteristics. The belief itself may be protected, but the way in which it manifests and the conduct of the employee in such situations may contravene company policy.
Of course, the surest way to avoid misunderstandings and conflicts on such matters is to develop a culture where openness and respect flourish. Leaders can drive this by demonstrating inclusivity and acceptance. For example, by using gender neutral language in policies and documents and making it easy for staff to declare their preferred pronouns if they choose, whilst recognising that not everyone will want to do so.