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Christian employee's beliefs that sex and gender are set at birth and cannot be changed were protected beliefs under Equality Act 2010 (ET)

12 January 2021

In Higgs v Farmor's School ET/1401264/19, an employment tribunal has held that a Christian employee's beliefs that gender cannot be fluid and that an individual cannot change their biological sex or gender were worthy of respect in a democratic society and could therefore be protected beliefs under the Equality Act 2010. 

Background

Mrs Higgs is a Christian and was employed as a pastoral administrator and work experience manager by Farmor's School. In the first of those roles, she was responsible for overseeing students who had been removed from a class for being disruptive.

The school's head teacher received an email from someone outside of the school making a complaint about Mrs Higgs. The complaint related to a Facebook post which the complainant considered demonstrated that Mrs Higgs held homophobic and prejudiced views against the LGBT community. The relevant post was a reposting of a piece written by another person to which she had added "Please read this! They are brainwashing our children!" and an exhortation to sign a petition. The post related to the teaching in schools of same-sex relationships, same-sex marriage and gender being a matter of choice.

The school's head teacher replied to the email asking the complainant to send him screenshots of any "similarly offensive posts" made by Mrs Higgs. As a result, he was sent a further example of Mrs Higgs' reposting of an article written by a third party which referred to gender fluidity as a "perverted vision" and that "the LGBT crowd with the assistance of the progressive school systems are destroying the minds of normal children by promoting mental illness". The complainant also expressed the view that Mrs Higgs seems to find "obnoxious" a category of person that would include several children in the school.

Following an investigation and disciplinary hearing, Mrs Higgs was dismissed for gross misconduct for breaching the school's conduct policy, including in relation to discrimination and serious inappropriate use of social media. Her internal appeal was unsuccessful.

Mrs Higgs claimed that she had been directly discriminated against and harassed on the ground of religion and that her following beliefs had resulted in her mistreatment:

  • Lack of belief in gender fluidity.
  • Lack of belief that someone could change their biological sex or gender.
  • Belief in marriage as a divinely instituted life-long union between one man and one woman.
  • Lack of belief in same-sex marriage. While she recognises the legalisation of same-sex marriage, she believes that this is contrary to Biblical teaching.
  • Opposition to sex and relationship education for primary school children.
  • A belief that she should "witness" to the world, that is, when unbiblical ideas or ideologies are promoted, she should publicly witness to Biblical truth.
  • A belief in the literal truth of the Bible, and in particular Genesis 1v 27: "God created man in His own image, in the image of God He created him; male and female He created them".

Decision

  • The employment tribunal (Reed EJ sitting with lay members) unanimously held that Mrs Higgs' beliefs that gender cannot be fluid and that someone cannot change their biological sex or gender were protected beliefs under the EqA 2010. However, she had not been directly discriminated against or harassed because of those beliefs.
  • The tribunal held that it "could see no reason why the belief professed by Mrs Higgs should necessarily result in unlawful action by her" and that "there was no reason to believe she would behave towards any person in a way such as to deliberately and gratuitously upset or offend them".
  • The tribunal considered that, while the belief that sex and gender are set at birth may be upsetting to some people, if freedom of speech and the rights within Articles 9 and 10 of the ECHR only extended to expressions of belief that would upset no-one, they would be worthless.
  • The tribunal concluded that Mrs Higgs' first and second beliefs that sex and gender cannot be changed did satisfy the final test in Nicholson and were therefore protected beliefs under the EqA 2010.
  • The tribunal held that the action taken by the school against Mrs Higgs was motivated by a concern that because of her Facebook posts, she would be perceived as holding unacceptable views in relation to gay and trans people. Its actions were therefore not on the ground of Mrs Higgs' beliefs, but rather because her actions meant that she might be reasonably perceived as holding beliefs that did not qualify for protection under the EqA 2010 (although she denied holding such beliefs).
  • The tribunal took into account the fact that Mrs Higgs had made it clear that she had no intention of desisting from making any further posts in the future. It also accepted the school's evidence that if Mrs Higgs' beliefs had been simply stated on her Facebook page, no further action would have been taken against her.
  • The tribunal held that, while the treatment received by Mrs Higgs was undoubtedly unwanted conduct, it was not related to the protected characteristic of religion or belief, and the school's conduct neither had the purpose or effect of violating her dignity, nor creating an intimidating, hostile, degrading, humiliating or offensive environment.
  • While the Facebook posts in question expressed those beliefs, her treatment was not a consequence of her expressing those beliefs in a temperate and rational way. Rather it was because the school considered that the language used in the posts might reasonably lead someone who read them to conclude that she held homophobic and transphobic views.

In this case the tribunal sought to distinguish its decision from the earlier tribunal decisions in Forstater and Mackereth (although it was not bound by those decisions) by reasoning that in the earlier cases the claimant's beliefs could have resulted in their discriminating against members of the trans community. However, since on the evidence there were LGBT pupils in the school and Mrs Higgs had direct contact with pupils, it is difficult to see how such a distinction could properly be made.

It is understood that Mrs Higgs intends to appeal the decision. We also understand that both Forstater and Mackereth have been appealed to the EAT. It is therefore hoped that we will receive appellate guidance on this issue in the near future.

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