LGBT+ issues have been firmly in the media spotlight in recent weeks. This has been largely driven by various organisations announcing they are ending membership of the Stonewall Diversity Champions Programme. There has also been a high-profile employment appeal tribunal ruling on the expression of gender critical beliefs. Add in ongoing commentary from the media and politicians and the issues have become part of a more widespread debate. So, what is it all about? And what are the implications for workplaces and employers?
You may have heard the term gender critical belief in relation to the Maya Forstater case as well as in the media coverage about Stonewall.
The definition, according to the employment appeal tribunal judgment, is that gender critical beliefs ‘include the belief that sex is immutable and not to be conflated with gender identity’.
Maya Forstater did not have her contract renewed after tweeting gender critical views in which she questioned former government plans to let people declare their own gender. Forstater then brought complaints of belief and sex discrimination against her employer to an employment tribunal. She lost the tribunal in 2019 with the judge stating that the views she expressed were ‘not worthy of respect in a democratic society’.
However, in June 2021 she won an appeal hearing against that decision.
The judge ruled that gender critical beliefs are a protected philosophical belief under the Equality Act 2010 though, of course, they cannot be used as the basis for discrimination or harassment of trans people. Equally, people who hold gender critical beliefs are also protected from discrimination or harassment for holding that view. We discuss the case further here.
Stonewall has championed LGB rights in the UK since 1989. In this time, the charity has helped to lift the ban on LGB people serving in the military and successfully advocated for civil partnerships. After a period of consultation, Stonewall became trans inclusive in 2015.
However, in recent years the organisation has been accused of favouring trans rights at the expense of women’s right to privacy, safety, and security. In particular, some lesbian, gay and bisexual people, as well as women and women’s rights groups, have voiced concerns about Stonewall increasingly pushing the idea of self-identification on the matter of gender.
Essentially, Stonewall suggests that if someone self-identifies as a gender different from the sex they were assigned at birth, they should be able to access the same sex spaces for that gender, including toilets and changing facilities.
In its actions, Stonewall has been accused of giving advice that misinterprets the Equality Act 2010, claiming that it includes protection for ‘gender identity’. A report by the University of Essex, claimed that some Stonewall advice suggesting that the Equality Act 2010 included ‘gender identity’ is misleading. Stonewall issued a statement refuting the accusation.
Recent media coverage has focused on the decision of several high-profile organisations to leave the Stonewall Diversity Champions programme. Employers pay to join this scheme to receive resources and guidance on making their workplace LGBT+ inclusive. Stonewall states that the programme provides guidance and support that helps employers meet their statutory obligations under the Equality Act 2010, but also to go beyond the ‘legal minimum’.
In recent weeks and months, several prominent organisations, including Channel 4, Ofsted, the Cabinet Office, the Government Equalities Office, and notably the EHRC, announced they had left the Diversity Champions programme. While several cited cost as the driving factor, some revealed concern over the LGBTQ+ charity’s stance on trans rights.
Stonewall has dismissed reports of employers leaving the programme saying organisations ‘come and go depending on what works best for them’, and that the post-pandemic economic downturn had led some employers to leave the programme.
Stonewall has issued statements on its website and social media to communicate its response to the ongoing attention it is receiving, rather than participating in media interviews, claiming it has been the target of a ‘co-ordinated attack’ by the media.
An important part of the trans inclusion issue concerns access to same sex spaces such as toilets, showers and changing facilities, which could have implications for workplaces. Are trans people able to use facilities for a gender different from the sex they were assigned at birth?
The simple answer here is yes, and this has been the case for a number of years. The Equality Act 2010 prohibits discrimination in employment and the provision of services (including discrimination because of gender reassignment). It says that trans people may only be excluded from same sex spaces if it is a ‘proportionate means of achieving a legitimate aim’. The EHRC Statutory Code of Practice on the Equality Act 2010 adds that ‘any exception to the prohibition of discrimination must be applied as restrictively as possible’ and the denial of a service to a trans person ‘should only occur in exceptional circumstances’. The limited case law we have on the point finds that it is discriminatory under the Equality Act 2010 to prevent a trans person from using the bathroom they wish to. Therefore, it cannot be routine practice to exclude trans people from same sex facilities and each case should be assessed on its own merits.
However, numerous groups are calling for clearer guidance on the single-sex exemptions in the Equality Act 2010, citing the need for specific instances of how ‘proportionality’ works in practice, particularly in schools and workplaces.
There are few examples of single sex spaces being tested. However, in July 2021, the High Court ruled that it is lawful for trans women to be housed in female jails in England and Wales. The judge recognised that 'some, and perhaps many, women prisoners may suffer fear and acute anxiety if required to share prison accommodation and facilities with a transgender women who has male genitalia', but that the rights of transgender women prisoners must also be considered.
The judge went on to say that 'policies require a careful, case by case assessment of the risks and of the ways in which the risks should be managed'.
Organisations must follow the law and should be guided by general principles of fairness and inclusion:
- It is the employer's responsibility to ensure they have sought advice from a qualified legal professional to be certain they are following the correct interpretation of the law.
- Guidance on good practice can help employers ensure they have the right policies and training for staff and managers in place to support inclusion. It is important that employers regularly check their guidance against employment law to ensure that they are up to date with the latest developments and are correctly interpreting legal direction.
- When dealing with disagreements over legal compliance, organisations should seek appropriate advice, because every case will vary depending on the individuals involved and the specific circumstances and context.
Employers should be aware that this is a challenging time for LGBT+ people, and trans people in particular. Many will be frustrated and upset by the current spotlight on these issues and what it means for inclusion, dignity, and their ability to live without fear or discrimination.
Equally, some women are concerned that accommodating the rights of trans women will impose anxiety and burden on women who aren’t trans.
It's a complex space, so it’s vital that employers create a culture of inclusion, where everyone feels psychologically and physically safe, and a sense of belonging. Employers should promote initiatives which inspire empathy and understanding. They should also ensure that everyone can access sympathetic points of contact and raise concerns with suitably trained people who can signpost sources of internal and external support.
Employers need to make their own assessment about inclusion policies, practices and principles to support inclusivity efforts, and whether they will benefit from participating in any kind of external I&D programme, or membership of any organisation, to drive this.
The CIPD is committed to being an inclusive employer and championing LGBT+ inclusion in our organisation. We previously participated in the Stonewall Diversity Champions programme but left the scheme in 2019 as we did not feel it was essential for being an inclusive employer and we held an ambition to strengthen our in-house I&D expertise. We now have a full-time Head of Inclusion and Diversity alongside our I&D policy experts.
This article was originally published in July 2021 and has since been updated.
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