You cannot go on social media or open a newspaper these days without being faced with the challenge of understanding the difference between ‘gender identity’ and ‘gender critical’ beliefs and the two are not to be conflated. There are stark and clear differences between the two belief systems which have both been recognised as being capable of protection as philosophical beliefs for the purposes of section 10 Equality Act 2010, Forstater v CGD Europe.
As to whether someone actually holds a gender identity/gender critical philosophical belief will be determined on a case by case basis in accordance with the Grainger principles, which are:
- The belief must be genuinely held;
- The belief must be more than an opinion or viewpoint based on information presently available;
- The belief must concern a weighty and substantial aspect of human life and behaviour;
- The belief must attain a certain level of cogency, seriousness, cohesion and importance;
- The belief must be worthy of respect in a democratic society and not incompatible with human dignity and not be in conflict with the fundamental rights of others.
So let’s try and be clear:
A ‘gender identity’ belief is one that considers everyone has a gender that could be different from their birth sex and effectively overrides sex. Someone who holds this belief sees trans men as men and trans women as women. Their view is that the gender identified with takes precedence over sex assigned at birth.
This is entirely different from a ‘gender critical belief’ which sees that there are only two sexes capable in humans, male and female. This is the belief that sex relates to reproductive biology with men producing sperm and women producing ova (on the basis that the sexual organs are working effectively). A person who holds a ‘gender critical’ belief recognises women as adult human females and men as adult human males and that it is impossible for a person to change sex which is determined at conception.
It is however possible for someone to identify as being of the other sex and change their legal sex by acquiring a Gender Recognition Certificate (GRC). This however is not the same as being born into either sex.
Whatever your belief may be, if it is considered a philosophical belief for the purposes of the Equality Act 2010 you are afforded protection from any discrimination that you may suffer as a result of holding that belief.
As employment practitioners, we recognise that the two sides of the argument are hotly contested but consider that people should be able to hold different opinions/beliefs and engage in reasoned and rational debate.
This blog was written by Kate Lea and Elizabeth McGlone of didlaw who both practice in the area of women’s rights.
