282: Is a belief that sex and gender is biologically immutable protected by the Equality Act 2010?

In Higgs v Farmor’s School, an Employment Tribunal has ruled that a Christian employee’s beliefs that gender cannot be fluid and that sex and gender cannot be changed are protected beliefs under the Equality Act 2010. However, her claim of religious discrimination failed because she had been dismissed for reasons unconnected to those beliefs.

Mrs Higgs is a Christian who was employed by Farmor’s School as a pastoral administrator and work experience manager. The school’s headteacher received an anonymous complaint about Facebook posts by Mrs Higgs expressing her objections to the teaching in schools of same-sex relationships, same-sex marriage and gender being a matter of choice. Following an investigation and disciplinary process, Mrs Higgs was dismissed for breaching the school’s conduct policies, including in relation to discrimination and inappropriate use of social media. She brought a claim for discrimination and harassment on the grounds of her religious beliefs.

The Tribunal ruled that Mrs Higgs’ beliefs that gender cannot be fluid and that someone cannot change their gender were worthy of respect in a democratic society and could be protected beliefs under the Equality Act 2010. However, she had not been discriminated against or harassed because of those beliefs. She had been dismissed because she had breached the school’s behaviour policies. The school was genuinely concerned that her Facebook posts might reasonably have led people to conclude she was homophobic or transphobic. These were views which could potentially have an adverse impact on pupils, parents, staff and the wider school community. Mrs Higgs had also made it clear that she did not intend to stop posting similar content.

This decision highlights the potential difficulties faced by employers seeking to balance the right to freedom of expression and religion with the rights of others who find certain beliefs to be offensive. Several recent cases illustrate the potential conflict between religious beliefs and beliefs about sexual orientation. This case conflicts with another Employment Tribunal decision in Mackereth v Department for Work and Pensions in which a Christian doctor’s belief that a person cannot choose their gender was held not to be a protected belief because it was incompatible with human dignity and conflicted with the fundamental rights of others. The Higgs Tribunal distinguished the Mackereth case on the basis that Mrs Higgs had not acted in a way that gratuitously upset or offended anyone. We understand that both the Mackereth case and the Higgs case are being appealed to the EAT, which will hopefully bring some clarity to this issue. This case also highlights the importance of having well-drafted conduct, equality and social media policies which set out clearly the consequences of any misconduct, as well as ensuring that staff are trained to recognise and deal with discrimination in the workplace.