Summary
This note discusses the interaction of so-called ‘Gender Critical Beliefs’ and the Operation of the Equality Act 2010.
Gender critical beliefs and the Equality Act 2010
Overview
Some people argue that Gender Critical (GC) beliefs, which often don’t align with transgender identities, can lead to discrimination because the Equality Act (EA2010) supposedly fails to protect their ‘free speech’.
It is accepted that certain people hold ‘Gender Critical beliefs’ – however it is the manifestation of those beliefs, especially when they cause a detriment or harassment to a Transgender person or someone who is believed to be transgender, which are problematic.
Anyone can truly and honestly hold a belief and that belief be protected under the Equality Act.
However being able to manifest that/those belief/s needs to pass certain tests which are detailed in the Parliamentary briefing note:
There are a number of judgments referenced in the above mentioned Parliamentary Briefing Note which – highlight the right to hold a belief, and only that, also how that belief interacts with others in a workplace or when providing a service.
Protection of the rights of Transgender People not to be discriminated against, including the right not to be harassed, are clearly spelled out in the Equality Act 2010. under the section on Gender Reassignment.
Where the expression of beliefs impinge on the right to not be discriminated against, those beliefs should not manifest in a way that causes a detriment or harassment to the person needing protection e.g., a transgender Person with the protected characteristic of Gender Reassignment. i.e. harassment or not accepting the person’s legal status (i.e. under the Gender Recognition Act and/or Equality Act) for example not accepting the Legal Sex, Gender, the way they present themselves, Name, or the way they request to be addressed.
A ‘Gender Critical’ person can believe what they want, but not express it where it causes a detriment to another person, especially where that other person or persons have a protected characteristic.
Key Points
For the purposes of this brief – A transgender person is someone who has the protected characteristic of Gender Reassignment under the Equality Act 2010.
Transgender people exist and have done so for as long as records have existed.
UK legislation has recognized this through the
Gender Recognition Act 2004, and also protected them against discrimination since 1999 in the Sex Discrimination Act and subsequently with the same provisions being subsumed into the Equality Act 2010.
So these protections have existed for longer than the last 25 years. Yet it is only within the last few years that these protections have been disputed.
Transgender people have or have had in the past a medical condition defined as Gender Incongruence, which is included in the International Classification of Diseases (as a medical condition). The latest version being ICD 11. Transgender people exist and are not part of an ‘ideology’, To that effect, suggesting otherwise, is equivalent to say autism is an ideology – for example. Both are recognized medical conditions and inherent characteristics of some individuals in our society. An ideology (according to Google AI) being;
“a system of ideas and ideals, especially one which forms the basis of religious doctrine, economic or political theory and policy”.
Harassment
In the UK, harassment is defined as unwanted conduct that violates a person’s dignity or creates an intimidating environment. It can be verbal or non-verbal, and can involve groups of people.
The key parts pertinent to holding and expressing a protected belief are defined in the Grainger Criteria. The Grainger criteria are a set of guidelines for determining if a belief qualifies as a philosophical belief under the Equality Act 2010. The Employment Appeal Tribunal (EAT) established these criteria in the 2009 case Grainger plc v Nicholson.
Especially:
(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.
‘Gender-critical’ beliefs, including a belief that biological sex is dichotomic, dimorphic, important, immutable and distinct from gender identity, is a point of view not supported by science – as sex has a number of determining factors and secondary characteristics – a correct description is that Sex characteristics are bi-modal in so far as the majority of people fit into the two main categories, however there are a number of variations and determinants especially in the case of intersex or people with differences of sexual development – it is also accepted that a significant number of these characteristics can be altered. A relevant example being; Under section 7 of the Equality Act it contains the statement –
‘by changing physiological or other attributes of sex’
Therefore accepting that physiological aspects of Sex can be changed, and recognized in Law. The cause of Gender Incongruence is currently unknown, it may be genetic. What is true is that it exists and that the vast majority of people suffering from it live their best lives, living as the gender/sex that they present as, and should be allowed to do so without being subject to a detriment caused by the manifestation of the beliefs of those that identify as Gender Critical.
The case of Lister v New College Swindon, this is an example of where beliefs interact with the Equality Act 2010. Basically he could hold a belief, but not harass or abuse a transgender student.
https://www.judiciary.uk/wp-content/uploads/2024/03/Lister-v-New-College-Swindon.pdf
Recommendation
Trans-hostile actors with ‘Gender Critical’ beliefs don’t accept the legal status of transgender people and depersonalise debates that are relevant to the lives of trans people – verbally expressing those beliefs or causing a detriment like creating unjustified alarm, downplaying issues, like the safety and healthcare and healthcare of trans people. They do this to make more palatable their desire to deny trans people the rights and opportunities that they currently have. This rhetoric and any detriment should be actively resisted when it is encountered.
Further Reading
The origin of the term ‘gender ideology’ can be traced back to the Roman Catholic Church(3) and is now heavily promoted by organisations like the Heritage Foundation, an American evangelical far-right conservative think tank based in Washington, D.C.
The Heritage Foundation has strong links to the U.K. Conservative Party, and Oliver Dowden and Liz Trust have recently addressed them with Heritage reporting on their website “Ten Years to Save the West: Former Prime Minister on Fighting the Global Left”.
Right-wing, religious & conservative groups almost exclusively use the term Gender Ideology (G I) phrase referring to LGBTQLGBTQ LGBTQIA+ is an inclusive term that includes people of all genders and sexualities, such as lesbian, gay, bisexual, transgender, questioning, queer, intersex, asexual, pansexual, and allies. While each letter in LGBTQIA+ stands for a specific group of people, the term encompasses the entire spectrum of gender fluidity and sexual identities. https://abbreviations.yourdictionary.com/what-does-lgbtqia-stand-for-full-acronym-explained.html https://en.wikipedia.org/wiki/LGBT rights as a whole and specifically to the legal recognition, legal protection, and medical provision or transition/healthcare of trans men and trans women, and to themselves as Gender Critical (GC).
A more recent phenomenon, however, is the direct confrontation by some of these politicians of gender-based laws and public policies. There is a shift from a defensive position to an offensive one: these politicians are not only protecting family and life values but also aiming to illegalise any gender reference. Either for religious convictions or for electoral opportunities (or both), this type of politician has included the fight against gender ideology as part of their public agenda. The most visible and extreme example in the region is the current president of Brazil, Jair Bolsonaro, who has held the fight against gender ideology as one of the main axes of his electoral campaign and governmental decisions.
References
- Extract from the Gender Recognition Act 2004
https://www.legislation.gov.uk/ukpga/2004/7/section/9 - Extract from the Equality Act 2010
https://www.legislation.gov.uk/ukpga/2010/15
7 Gender Reassignment
(1)A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.
(2)A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.
(3)In relation to the protected characteristic of gender reassignment—
(a)a reference to a person who has a particular protected characteristic is a reference to a transsexual person;
(b)a reference to persons who share a protected characteristic is a reference to transsexual persons. - Grainger Criteria pertaining to a philosophical belief – can be found here:
https://en.wikipedia.org/wiki/Grainger_plc_v_Nicholson - References to the relevant parts of ICD 11 can be found here
ICD 11 – section 17 Gender Incongruence
https://icd.who.int/browse/2025-01/mms/en#411470068
and more specifically:
HA60 Gender incongruence of adolescence or adulthood
https://icd.who.int/browse/2025-01/mms/en#90875286
HA61 Gender incongruence of childhood
https://icd.who.int/browse/2025-01/mms/en#344733949
