UK: Belief Discrimination: Gender Critical Beliefs

Authors: Rob Hill, Corinna Harris and Sophie Jackson

Mr. Lister, who was a lecturer at the New College Swindon (the “College”), has gender critical beliefs that “sex is binary, immutable and a biological fact and should not have been conflated with gender identity.”

Mr. Lister had been asked by a trans student, Student A, to use their preferred name. Rather than using the name requested, Mr. Lister adopted a communication style of gesturing, which he accepted upset Student A. When Student A asked about their eligibility to participate in an all-female maths Olympiad given their gender transition, Mr. Lister stated, “she could because she was a girl” and included their previous female name on list of entrants on the whiteboard at the front of the class.

When Student A stayed back after class to address this, Mr. Lister explained that the decision to transition was “irreversible”, that taking testosterone was likely to cause long-term medical problems and NHS services could not be guaranteed for the future.

Subsequently, Student A’s attendance declined and another student, Student B, made a complaint about Mr. Lister’s conduct. Further issues came to light during the investigation, including social media posts by Mr. Lister.  Mr. Lister was dismissed and placed on the barred list following a DBS referral.  During the disciplinary hearing Mr. Lister stated that he was not prepared to use Student A’s preferred name in the future.

It was accepted that Mr. Lister’s philosophical belief was capable of protection under the Equality Act 2010. Nonetheless, the Employment Tribunal dismissed his claim for direct discrimination.  It concluded that to the extent that the College sought to restrict the manifestation of Mr. Lister’s belief, it had been justified in doing so in trying to protect Student A’s welfare and prevent harm.  Mr. Lister’s dismissal was proportionate given his indication that that his behaviour would not change going forward.  The Tribunal also dismissed Mr. Lister’s indirect discrimination claim.

Key Action Points for Human Resources and In-House Counsel

The College had clear policies in place to “assist and protect” those at the College and the policies, and Mr. Lister’s failure to follow parts of them, played an important role in the outcome of this case. This demonstrates the importance of employers having clear, comprehensive and appropriate policies in place to rely upon when difficult issues of balancing conflicting beliefs arise.

Lister v New College Swindon ET/1404223/2022Opens in a new window