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Protecting employees from anti-trans harassment in the workplace
19/11/2021
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Transgender Symbol and Message "Respect Me"
Authors
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Robin Moira White
Robin Moira White is a barrister specialising in employment and discrimination law at Old Square Chambers

Since the Employment Appeal Tribunal handed down its judgment in Forstater v Centre for Global Development there has been considerable fear expressed by trans workers that they will be subject to harassment in their workplaces. Employers have sought advice about how to protect them. Post-judgment, what is the true position for trans employees and their employers?

Statute analysis

The starting point is the definition of harassment found in the Equality Act 2010. Section 26 provides: “A person (A) harasses another person (B) if A engages in unwanted conduct related to a protected characteristic, and the conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating, or offensive environment for B.”

Section 26(3)(a) specifically provides that conduct related to “gender reassignment” is included within the definition. Section 26(4) makes plain the reasonable perception of (B) is a significant factor to take into account if unlawful conduct is to be taken into account. The “purpose or effect” formulation should be noted. There does not have to be an intention that the effect be created.

A person committing discriminatory harassment would be personally liable, and so would their employer, unless the employer had taken “all reasonable steps to prevent [a person] doing anything of that description” (section 109(4)).

Case lessons

The debate over trans rights in the workplace has a parallel that some employers will be all too familiar with. Some people with strong religious convictions are not supportive of gay relationships. Useful, in this context, are the 2021 linked appeals involving Richard Page, a magistrate and NHS trustee who was removed from both positions after speaking openly on TV about his negative views of people in gay relationships.

Clearly, manifestation of such beliefs in a workplace might be fatal to the working relationship, but, by contrast, there is the 2019 decision in R (of the application of) Ngole v The University of Sheffield where a student’s expression of such views on social media was not necessarily a justification for termination where there was no clear evidence the belief would be brought into the workplace.

In Forstater, oddly, even though there was no appeal on the facts, the Employment Tribunal (EJ Tayler) and Employment Appeal Tribunal (Choudhury P) came to different conclusions about what Ms Forstater would do in a workplace. At paragraph 90 of his judgment, EJ Tayler said: “…she will refer to a person by the sex she considered appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating, or offensive environment.”

But Choudhury P, at paragraph 49, concluded: “On a proper reading of the tribunal’s findings, it seems to us that the most that can be said is that the claimant will sometimes refuse to use preferred pronouns if she considered it relevant to do so, eg, in a discussion about a trans woman being in what the claimant considered to be a woman-only space.”

This is a quite different reading and may partially explain the different conclusions reached; EJ Tayler that Ms Forstater’s views were not protectable and Choudhury P that they were.

Also of note, is that Choudhury P felt the need to add the following extraordinary rider to his ruling: “This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment under the [Equality Act 2010 (EqA)]. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of EqA will be for a tribunal to determine in a given case.

“This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA. They do. Although the protected characteristic of gender reassignment under [section] 7, EqA would be likely to apply only to a proportion of trans persons, there are other protected characteristics that could potentially be relied upon in the face of such conduct.

“This judgment does not mean that employers and service providers will not be able to provide a safe environment for trans persons. Employers would be liable (subject to any defence under [section] 109(4), EqA) for acts of harassment and discrimination against trans persons committed in the course of employment.”

Ms Forstater’s views are often summed up by the rather bland “biological sex is immutable” formulation. But paragraph 23 of her witness statement, quoted as paragraph 39.7 of the Tayler judgment bears repetition: “I believe that it is impossible to change sex or lose your sex. Girls grow up to be women. Boys grow up to be men. No change of clothes or hairstyle, no plastic surgery, no accident or illness, no course of hormones, no force of will or social conditioning, no declaration can turn a female person into a male, or a male person into a female.”

Imagine, for a moment, being a trans or non-binary person working alongside someone with such views, while also considering two further cases.

In Dr David Mackareth v Department for Work and Pensions, the Birmingham employment tribunal upheld the dismissal of a health-assessment doctor who stated that his Christian views required him to misgender trans patients coming before him for assessment. And, in Higgs v Farmors School, the Bristol employment tribunal found non-discriminatory the dismissal of a school assistant for expressing extreme views about trans individuals on social media.

Example scenarios for employers

Unsurprisingly, employers may feel confused as to what is and is not harassment of trans workers. Well, given what we have already discussed, consider the following scenarios.

What if a person with anti-trans views calls out a trans woman in front of colleagues in the workplace for using female facilities at work? Clearly, this is harassment. The humiliating or degrading nature of the environment created will be obvious.

What if a person with anti-trans views approaches their manager to express their opinion that a trans woman should not use female facilities at work? This is not harassment. All individuals have rights to hold views and to raise concerns with their manager. Done in this way, the trans person is not exposed to these views.

What if a person with anti-trans views canvasses support from fellow workers for the position that a trans woman should not use female facilities at work? This is likely to be harassment. It would seem inevitable that this behaviour would become known to the trans colleague and the “environment” test would be met.

What if a person with anti-trans views posts leaflets on work noticeboards advertising meetings of an anti-trans organisation, or wears badges proclaiming membership of such organisations? This is likely to be unlawful harassment. It would seem inevitable that this behaviour would become known to the trans colleague and, again, the “environment” test would be met.

Finally, what if a person with anti-trans views posts on social media about their lack of support for trans people, using terms such as “ideology” and “transgenderism”, and suggests that the Gender Recognition Act should be repealed? This scenario is more difficult. Any suggestion that these views will be brought into or manifested in the workplace will cause the employer to have to consider the risk that harassment would occur.

Reasonable steps

The “reasonable steps” test is quite a high bar. The employer has to have taken “all” reasonable steps. So if, in bringing a claim, an aggrieved employee can think of a reasonable and practical step that could have been taken to avoid harassment, the employer will be in trouble.

Active, comprehensive steps will be needed, mind you. Advice from a suitable diversity and inclusion professional, or a trade organisation for smaller employers, will be important.

Practical steps for an employer
– Make your support of diverse employees clear;
– Have a policy on controversial matters in the workplace;
– Make sure that policy has been distributed, trained on, and put into effect;
– Deal with breaches of policy in a timely way, intending, where possible, to lead colleagues to act in a mutually supportive way, understanding that differences of opinion about non-work-related matters should not be allowed to interfere which other colleagues’ time at work; and
– If an individual has extreme views, have a discussion with them about workplace standards before problems occur.

 

Please note that this article expresses the views of the writer and no-one else. Robin Moira White became the first barrister to transition from male to female in practice at the discrimination bar in 2011. She writes and lectures regularly on transgender matters, and in May 2021 jointly published with Nicola Newbegin A Practical Guide to Transgender Law”.