Gender-critical? Here’s why you should watch what you say at work

Thanks to a slew of employment tribunal wins, anti-trans views might appear to come with a Harry Potter-style magic cloak of invulnerability. But employees should tread carefully, warns Robin Moira White

Thursday 28 March 2024 17:16 GMT
Brick wall: ‘Inflicting your protected beliefs on others can seriously affect your career prospects’ (Alamy/PA)
Brick wall: ‘Inflicting your protected beliefs on others can seriously affect your career prospects’ (Alamy/PA)

Two recent employment tribunals have shown how inflicting your protected beliefs on others can seriously affect your career prospects.

The first – which has been splashed liberally over social media these past few weeks – involves Kevin Lister, a 60-year-old, gender-critical maths teacher from Swindon, who believed he was justified in refusing to use the preferred name and he/him pronouns of a biologically female student at New College Swindon, while also making remarks denigrating their gender transition.

The college sacked him for gross misconduct – but, in a judgment handed down at the Bristol tribunal on Wednesday, Judge Livesey upheld Lister’s dismissal as fair and non-discriminatory.

The 44-page judgement makes shocking reading, setting out the disrespectful antics of Mr Lister and helps explain why he also lost his DBS certification, making it unlikely he will be able to work in education in the foreseeable future.

Less well-reported was the case of Thomas Richardson v JD Wetherspoons, about the dismissal of an “anti-woke campaigner” on the pub chain staff, who thought it appropriate to make plain his highly negative views about same-sex relationships, to a group of staff including those in same-sex relationships. He told a lesbian colleague that “God would not forgive gay people”, and said during a Pride weekend that he didn’t want the “gay thing shoved down [his] throat”. The problem might be obvious.

These cases should not be surprising. They build on the foundations of earlier cases, such as Lillian Ladele, the Christian registrar at Islington Council who was threatened with the sack for refusing to take part in same-sex civil partnerships, and who was successful in her religious discrimination case; Nadia Eweida, the British Airways employee who won the right to wear her cross at work; and David Mackereth, who lost his claim that he was dismissed from his role as a health and disabilities assessor at the Department for Work and Pensions for refusing to call a transgender woman “she”, because of his faith.

However, since the high-profile Maya Forstater case – in which the tax expert was awarded more than £100,000 in compensation when she lost her job at a think tank after tweeting that transgender women could not change their biological sex – a view has grown that gender-critical beliefs are a Harry Potter-style magic cloak of invulnerability, excusing any form of inappropriate behaviour towards transgender people. As a trans person myself, it certainly feels like that at times.

The Lister and Richardson verdicts can be contrasted with recent cases in which gender-critical complainants have been successful. Rachel Meade, a social worker suspended from her Westminster council job after sharing gender-critical beliefs online, won her claim against her employer for discrimination under the Equality Act.

Meanwhile, another tribunal ruled that the Green Party was entitled to remove Shahrar Ali, its former deputy leader who believes biological sex to be “real and immutable”, as his views are inconsistent with its values, but that it needed to follow a proper process to do so.

These days, Article 10 of the European Convention – the right to freedom of expression – is used to justify pretty much any form of disrespectful communication (paradoxically, by those who often decry the very existence of the European Convention). X (formerly Twitter) is a place where the deadnaming and misgendering of trans people is common. My own professional regulator, the Bar Standards Board, has ruled that it will not take a position on misgendering and deadnamimg by barristers in their non-professional lives.

But unlike social media, areas in which the Equality Act applies – workplaces, service provision locations, professional workspaces and – crucially, for the Lister case – schools, the position is rather different. Employers, service providers and school authorities are entitled to regulate the behaviour of employees and others towards other employees, service users and pupils, to ensure that their right to work, shop, eat out and learn without being discriminated against is not trespassed against by those with a belief that their beliefs entitle them to act as they choose towards others without consequences.

I now spend a significant amount of time with those at the very start of their legal careers, either university students, bar school students or junior practitioners. Generation Z has no problem with those who are trans or non-binary and expects them to be respected. Indeed, ‘Student B’ in the Kevin Lister case – deservedly – received an honourable mention from the judge as someone who had stood against the bullying that her friend was being subjected to by Lister.

Human life is complex, and modern society must adapt to that complexity. The last century saw the rights of women, ethnic minorities and gay people accommodated and respected. Trans people have been protected in UK law for 25 years. Protection for those with religious or philosophical beliefs – the new kid on the block – is not an opportunity to roll back the rights of trans people.

Believe what you believe, but don’t use those beliefs to denigrate and attack others.

Robin Moira White is the first barrister to transition in practice at the discrimination bar and is the joint author of the leading text on transgender law

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