Gender-critical belief: Denise Fahmy v Arts Council England (ACE)

Following a recent decision of the Employment Tribunal, employers are reminded that they have a duty to protect the beliefs of their employees and prevent harassment in the workplace.

The case study below outlines the legal issues pertaining to gender-critical beliefs and their expression in the workplace.

Gender-critical beliefs, which include the belief that sex is biological, immutable and should not be conflated with gender identity, amount to a protected characteristic because they fall under the umbrella of ‘philosophical belief’ for the purpose of the Equality Act 2010. It is, however, important to note that this “does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity” (Forstater v Centre for Global Development Europe). It should also be noted that gender reassignment is a protected characteristic as well.

Background

In March 2022, a branch of ACE, The London Community Foundation, awarded the LGB Alliance (lesbian, gay and bisexual) a grant. The grant was widely criticised on the basis that the LGB Alliance has a history of anti-trans activity.

Denise Fahmy attended an internal Teams meeting which discussed the grant. During the meeting, ACE’s deputy chief executive expressed the view that LGB Alliance had a history of anti-trans activity and that it was a mistake to award the grant. Fahmy defended LGB Alliance, stating it was not anti-trans. Following the meeting, an “allies support sheet” was circulated by a member of staff at ACE, which included a link to a petition. The sheet included comments referring to “openly discriminatory transphobic staff”.

That member of staff was suspended for circulating the email containing the sheet with the comments and the petition, their actions, and the petition was taken down. Fahmy issued complaints to the Employment Tribunal for harassment and victimisation on the grounds of her gender-critical beliefs at work. The decision of the Employment Tribunal is here.

While Fahmy’s victimisation claim was dismissed, the harassment claim in relation to the email containing the ‘allied support sheet’ and petition succeeded. The judge stated:

“the email and comments were unwanted conduct, which had the purpose and effect of violating the claimant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant.”

The judge considered that ACE was liable for the acts of its employee, namely the circulation of the sheet containing the comments and petition. The judge said:

“The respondent (ACE) was aware this was a contentious issue. The respondent was aware of the need to update its policies and provide appropriate training with regard to issue of belief but the Tribunal is not satisfied that the respondent has taken all reasonable steps as required in section 109(4) to prevent its employees from harassing someone with the claimant’s protected characteristic.”