Ed Heppel, head of the employment team at law firm Rollits, told HR magazine: “This case reinforces the principle that while gender-critical beliefs can be protected under the Equality Act, employers can still take action against an individual expressing their beliefs in an objectionable and potentially discriminatory manner.”
Kevin Lister was dismissed from the sixth form college in 2022 after a disciplinary investigation accused him of gross misconduct for discriminating against a trans student who had asked him to refer to them by a new name and pronouns.
Lister claimed that the school had discriminated against him for his gender-critical views, which he argued were a philosophical belief and therefore a protected characteristic under the Equality Act 2010.
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The college had a disciplinary policy that defined behaviour, including discrimination or harassment of a student, as misconduct as well as a gender reassignment policy that sought fair treatment for staff and students who were “living in or intended to live in a gender other than that previously ascribed to them”.
Lister argued that the implementation and interpretation of the gender reassignment policy by the respondent had indirectly discriminated against his gender critical ideology.
Heppel said the college’s policies played a significant role in the court’s judgement.
He said: “Lister argued that he had no guidance from his employer on how to deal with the student, although the employment tribunal found that the gender reassignment policy contained the necessary advice and guidance.”
In September 2021, the student (Student A) emailed Lister to ask him to use their preferred name and he/him pronouns in class.
From that point on, Lister gesticulated towards the student rather than refer to them by their birth or preferred name.
He also entered the student into an all-female maths olympiad competition, writing their birth (female) name on the board in front of the class.
The student stayed behind after class to talk to the claimant and the tribunal document noted that Lister “accepted in evidence that they were upset then”.
Lister also said that he explained to Student A in that moment that their choice to transition was irreversible and referred to them as an “excellent young woman” in attempts to console them.
In January 2022, another student (Student B) made a complaint to the claimant about his failure to refer to Student A by their preferred pronouns, and later to the student services department.
The next month, Student B made another complaint to the respondent in regards to the claimant’s “hateful comments online”, in one of which he stated that he would not call his transgender students by their preferred name.
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In February, the claimant also attended two meetings with colleagues – one on mental health awareness and one on gender identity issues – at which college staff noted that the claimant commented that transitioning should be considered a mental health issue.
Following these incidents, a colleague referred the claimant to the head of safeguarding who commenced a disciplinary investigation into his behaviour over concerns that “his desire to persuade the student that they should not transition” could be harmful to students.
After a hearing on the decision, Lister was told that his conduct was found to have “constituted discrimination and/or harassment which could not have been justified on the basis of the views which he had himself held”.
The respondent also pointed to gender reassignment policy, which the claimant failed to reassure the panel he would comply with going forward.
The claimant was subsequently dismissed, which the tribunal ruled was due to his conduct and expressing his views in an objectionable manner.
The tribunal found that the respondent’s dismissal of the claimant was not an act of discrimination.
This judgement contrasts the Maya Forstater case, in which a tax expert was awarded £100,000 for discrimination and victimisation at tribunal after losing her job due to posting gender-critical beliefs on Twitter.
Heppel said this was due to the manner in which the beliefs were expressed.
He said: “In Forstater’s case, the tribunal established that gender-critical beliefs did qualify for protection under the Equality Act 2010. Following the decision not to renew her fixed-term contract, the claimant’s claim for discrimination succeeded because she had not expressed her beliefs in an objectively offensive or unreasonable way.
“In this case, the college accepted that Mr Lister’s gender critical belief was strongly held and amounted to a protected characteristic under the Equality Act. However, the tribunal found that the college was justified in trying to restrict the way Mr Lister had manifested his views. As he had indicated that his behaviour would not change moving forward, it was found that his dismissal was not discriminatory.”
Daniel Zona, associate in the employment team at the law firm Kingsley Napley, added that the tribunal had to balance the right to hold a belief with the rights of the trans student.
He said: "The tribunal set out in no uncertain terms that 'everybody is permitted to express their views in a free and democratic society, but not to the extent that others are upset, distressed and/or harassed.'
"While gender-critical beliefs may be protected under the Equality Act, so are the rights of transgender people. When dealing with complaints, employers must distinguish between the belief itself and how the individual has manifested that belief.
"This case demonstrates the importance of good-quality policies which set out clear expectations around employee conduct. Where employers enact a policy or carry out a procedure, they must do so constantly and fairly, and in a way which is reasonable and proportionate."
