In this article we explore what we mean by sex and gender discrimination and how to avoid the pitfalls of managing staff who express their views.
Should we be talking about this at all?
The recent decision that a woman who said people cannot change their biological sex was discriminated against by her employers, has thrown into sharp relief the difference between biology and gender.
Maya Forstater did not have her contract renewed after posting a series of tweets about gender and sex.
In 2019, an Employment Tribunal judge decided such views were not “worthy of respect in a democratic society”.
But in a 2021 an Employment Appeal Tribunal judge ruled “gender-critical” views were protected under the Equality Act 2010. The ruling sends out a signal that employers and organisations should think carefully when deciding how to treat staff, based on their views about sex-based rights and gender identity. It also shows how divisive and difficult it can be to negotiate these conversations.
So, what does the law mean when talking about these issues?
Discrimination based on belief – there is a need for employers and employees to respect the views of others even though they may not be “in tune” with the prevailing thinking on a given matter as the Tribunal upheld that Maya Forstater had been directly discriminated against because of her beliefs.
Sex discrimination – The Act protects both men and women against discrimination on the grounds of their sex, for example paying women less than men for doing the same job. Let’s not forget that men can be discriminated against too.
Gender discrimination – more accurately called gender re-assignment discrimination and the Act offers protection where people who propose to start to or have completed a process to change their gender less favourably e.g., because they are absent from work for this reason.
Therefore, it is important that we all remember that we just can’t cancel people and their beliefs if reasonably expressed just they are contrary to what people feel is acceptable of “right.”
And that while we use words flexibly and often use sex and gender interchangeably, they often in law have very specific meaning.
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