Gender-critical beliefs and dismissal

A gender-critical teacher recent lost his employment tribunal claims. Jo Moseley analyses the ruling and looks at the lessons for employers.

In Lister v New College Swindon a tribunal had to decide if a teacher with protected gender critical beliefs had been unfairly dismissed and subjected to discrimination because of those beliefs or because of the way he had expressed them. 

Facts

Mr Lister was employed by the college as a teacher. He holds gender critical beliefs, including the belief that sex is binary and immutable and should not be confused with gender identity. 

In September 2021, one of his students (student A) emailed him and asked to be known by a male name and to be addressed using male pronouns. Mr Lister reacted by raising a safeguarding concern via the college's online portal in which he asked whether A's parents consented to this and also if A had received “requisite counselling to allow [them] to make a decision of this magnitude”. The safeguarding team investigated his referral and concluded that it had no concerns about A.

Mr Lister was not comfortable referring to A as a male and adopted what he referred to as a gender-neutral communication style which involved gesturing towards A when asking questions. A was unhappy about this and spoke to him about it. During this conversation Mr Lister described transitioning as “irreversible” and voiced his opinion that “taking testosterone is likely to cause long-term medical problems and [they] would be reliant on the NHS, and the services could not be guaranteed for the future”. A was upset by this conversation.  

In February 2022, the College received a complaint from another student (student B) who alleged that Mr Lister continually failed to use the preferred name and pronoun for her friend. She said that A had been upset by Mr Lister's conduct and the comments he had made about gender reassignment. B also alleged that Mr Lister said she had a duty as A's friend to try and “talk [them] out of it”.

The student complaint was investigated and upheld. A disciplinary investigation was launched, it being alleged, amongst other things, that the Mr Lister had failed to follow the college's Gender Reassignment Policy which directed staff to adhere to students’ requests. 

During the investigatory meeting, Mr Lister apologised “unreservedly” and accepted that not using A's preferred name was not a “good situation for a student”. He acknowledged that he had made comments attributed to him by B. He also accepted that he should have sought advice from the college about his concerns. The college found that he had a case to answer and invited him to a disciplinary meeting.

Despite these admissions Mr Lister adopted a combative approach to the disciplinary hearing. He said that he would not use A's preferred name and that there was no legal obligation on him to do so. He was dismissed for engaging in “emotionally manipulative behaviour” towards A which put the student at risk of emotional harm and because he had failed to comply with relevant college policies. Mr Lister's subsequent appeal failed. 

During this process the college also referred Mr Lister to the Local Authority Designated Officer (‘LADO’) and, subsequently, the Disclosure and Barring Service (‘DBS’). He was barred from participating in regulated activities with children because he had caused emotional harm to a child (A) and it was likely that he would continue to impose his views on children. 

He brought proceedings against the college, arguing that he had been treated unfavourably because of his gender critical beliefs and/or the way that he had manifested them. In particular, he alleged that his dismissal had been for that reason and/or because he had attempted to protect the student from what he considered to have been the serious and imminent risk presented by the use of cross-sex hormones. 

The college accepted that his gender critical beliefs were protected under the Equality Act. 

Decision of the tribunal

The tribunal dismissed all of his complaints. It made the following points:

• Mr Lister had met his safeguarding obligations by referring his concerns about A to the college's safeguarding team and it was up to them to investigate and decide whether to take any action. If he was unhappy with their decision, he had a clear route to complain to senior leaders which he didn't exercise.
• He had not sought advice from the college about how to resolve the conflict between his own beliefs and those of A. Had he done so, it was possible that they could have found a way through the problem. 
• The college's decision to refer him to LADO was appropriate. It did not directly seek to restrict the manifestation of his beliefs. But, even if it had done so, it was justified in order to protect the welfare of student A and to prevent further harm. His comments to A and others had been “extensive, blunt and clear” and there was a significant power imbalance between him and his pupils. 
• None of the college's policies prevented him from holding his GC beliefs, nor were they applied to him in a way that was different to those who didn't share his beliefs. He was also able to reasonably express those beliefs and had done so during staff training on transgender and gender identity issues. 
• The tribunal found there was no evidence to support Mr Lister's claims that he has been subjected to direct discrimination because he held GC beliefs (which would be unlawful). 
• It then considered if he had manifested his protected beliefs in a way that was “manifestly objectionable” and the college's response in dismissing him was proportionate.  It relied on the principles set out by the EAT in Higgs v Farmor's School (which you can read here) to determine this.
• It found that the school's decision to dismiss Mr Lister was a proportionate response to the way in which he had expressed his beliefs. He has discriminated and harassed A and had made it clear that he would not change his behaviour going forward. There was no other, less drastic, steps the college could have taken to avoid further harm, discrimination and harassment.

Lessons for other employers

1.  You should allow staff to manifest their protected beliefs unless is proportionate to interfere with them

Employees don't have to keep their protected religious or philosophical beliefs to themselves; they have rights under Article 9 to manifest those beliefs and under Article 10 to express and hold opinions that others my find distasteful or offensive. But both are qualified rights. You can take action against staff who inappropriately manifest their beliefs, such as proselytising or promoting their views in a way that is intrusive or offensive but not for simply expressing their beliefs. 

Mr Lister promoted his views in a way that the tribunal considered was both intrusive and offensive. He was in a position of power over his students and used this to voice his genuine concerns about gender identity and transition in young people and, in particular, “experimental” medical treatments such as hormone treatments or surgery. This led him to discriminate and harass A and it was, therefore, proportionate for the college to interfere with how he expressed his protected beliefs.

His big mistake was not asking for support and guidance from his college once student A had asked him to refer to them as male. If he had explained his reasons for feeling uncomfortable about doing this the college would have had to consider how to balance the two competing beliefs at play. 

Although the disciplinary decision maker was confident that it would have been possible to have brokered a proportionate and reasonable agreement with respected both parties' views, it's not clear what this would have looked like. The college's Gender Reassignment Policy required staff to “use the name, title and pronoun by which the person wants to be addressed”. 

One option would have been to remove A (and any other transgender students) from Mr Lister's class. However, the courts have previously rejected discrimination claims from employees who asked for these sorts of adjustments to accommodate their specific beliefs (see here). It's also possible that transgender students would complain that this discriminated against them.

2. Consider government guidance and take advice

The government has recently waded into this debate. In December it published draft guidance for schools and colleges on gender questioning children. It recommends that educators should take a “cautious approach” and should not “proactively initiate action towards a child's social transition”. 

In the context of pronouns, it says that agreeing to use a different pronoun is a “significant decision” and should only be adopted if the benefit to the child outweighs the impact on the “school community” (whatever that means). It goes on to say that there will be very few occasions where a school or college will be able to agree to change pronouns and that no teacher or pupil should be compelled to use different pronouns.

This guidance is non-statutory which means that schools and colleges don't have to follow it. However, that doesn't mean that you should ignore it either. 

The government has consulted on the guidance and is considering the responses. It's fair to say that these differ significantly from those who believe that the guidance is fundamentally flawed and will lead schools and colleges into making discriminatory decisions to those who are in broad agreement. Both the ECHR and Royal College of Paediatrics and Child Health have submitted responses.

We await the government's response with interest. This is an issue where schools and colleges are crying out for robust, legally accurate advice. Whether that will arrive before the next general election remains to be see

Jo Moseley is Lead Practice Development Lawyer at Irwin Mitchell.