An employment tribunal claim on a plate

Naomi Cunningham at Legal Feminist:

Legal Feminist tweeted a short thread starting like this the other day:  

Cunningham first notes that the tweet hasn’t been verified, she doesn’t know who Mother Cecily is, she doesn’t know the story is true. But as a hypothetical, it’s what not to do.

It’s an extraordinarily bad idea. Any HR director tempted to organise training with this kind of content needs to catch up with the implications of the judgment of the Employment Appeal Tribunal in Forstater. Gender critical beliefs are capable of being protected under the Equality Act: that means that someone with gender critical beliefs is entitled not to suffer discrimination on grounds of those beliefs, or harassment related to them. That protection works in the same way as protection from discrimination on grounds of other protected characteristics: sex, race, disability etc. If you want to make this real – well, run the thought experiment, substituting in groups defined by other protected characteristics for “TERF” in “Be less TERF.”  It looks pretty bad, doesn’t it? 

What’s the difference here? It’s that “TERF”ism isn’t like racism or sexism or homophobia or exclusion of disabled people. It’s simply the formerly obvious view that men are not women. Employers shouldn’t be holding women who don’t believe men can be women up for rebuke and exclusion.

Anecdotally, it seems that large numbers of gender critical employees are suffering various kinds of discrimination and harassment at work because of these beliefs, or even being disciplined by regulators and professional associations for expressing them. A rash of employment tribunal claims following in the wake of Forstater seems inevitable. 

Punishment for not believing that men can be women. It still seems too grotesque to believe, yet it’s true.

But harassing your gender critical staff through the medium of your diversity training is taking things to another level. It has various snazzy features as compared to common-or-garden workplace harassment. 

First, it’s exceptionally efficient. You don’t have to bother to harass your gender critical staff individually. Instead, with a single document or training event, you can harass all your gender critical employees at once…

Bulk-harassment, as Legal Feminist called it.

The example given above is an extreme case, but employers should think seriously even about what may seem to them to be innocuous exhortations to “allyship,” like encouraging staff to wear a rainbow lanyard, or give their pronouns at the start of meetings or in their email sign-off, etc. The problem, in a nutshell, with pronouns and similar observances is that they are a public profession of belief. If you “encourage” your staff to profess a belief, you are in effect forcing them either to say a creed they may not believe (and which some may find profoundly menacing; for more on that, read this powerful blog),  or else to decline to say it, and thus to confess their unbelief in an environment where unbelievers may be unpopular. 

And it’s especially unpleasant to have your employer leaning on you to profess belief in a creed you consider absolute bullshit.

You say “being less trans-exclusionary, and more trans inclusive seems a reasonable viewpoint to be presented to employees.” That would be fine if “trans inclusive” just meant not discriminating against trans people. But gender critical people are slurred as “trans exclusionary” not because they want to exclude trans people from work or public life, etc. – which obviously would be terrible – but because they don’t accept that trans-identifying males are included within the definition of the word “woman.” So if HR say “be less trans-exclusionary”, they are making a demand that their staff believe something.

And the something in question is a crock of shit.

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