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51 Indus. L.J. 1 (2022)

handle is hein.journals/indlj51 and id is 1 raw text is: Industrial Law Journal, Vol. 51, No. 1, March 2022 © The Author(s) 2022. Published by Oxford University Press. This is an Open Access article distributed under the terms of the Creative Commons Attribution License (https://creativecommons.org/licenses/by/4.0/), which permits unrestricted reuse, distribution, and reproduction in any medium, provided the original work is properly cited. https://doi.org/10.1093/indlaw/dwac002 Should 'Gender Critical' Views about Trans People Be Protected as Philosophical Beliefs in the Workplace? Lessons for the Future from Forstater, Mackereth and Higgs SHARON COWAN* AND SEAN MORRIS** Acceptance Date February 14, 2022; Advanced Access publication on February 25, 2022. ABSTRACT Some Employment Tribunal claims brought under the Equality Act 2010 (EqA) involve situations where a person's protection from discrimination on the grounds of a protected characteristic-such as sex, sexual orientation or gender reassign- ment -comes into conflict with the rights of others, such as, for example, the right to freedom of expression or the right to manifest religion or belief under the European Convention of Human Rights (ECHR), or the protection from discrimination on the ground of religious or philosophical belief under the EqA itself. This article provides a critical account of the application of discrimination law in the recent cases of Forstater, Mackereth and Higgs, looking in particular at the application of the Grainger criteria, as well as relevant human rights provisions. Specifically, we offer an analysis of recent cases where claimants have alleged unlawful discrimin- ation relating to 'gender critical' views about transgender people (and sex/gender more broadly), which they argue constitute protected religious and/or philosoph- ical beliefs. We argue that while it is necessary that the courts maintain a flexible approach when applying discrimination and human rights law, it is vital that co- herent equality principles are applied consistently when reconciling and balancing conflicting rights. This is particularly important in the context of discrimination and human rights, where there is an ongoing debate about the extent to which trans peoples' rights are adequately protected and whether protecting such rights infringes the rights of others. *University of Edinburgh, Edinburgh, United Kingdom, email: s.cowan@ed.ac.uk; *Independent researcher, Edinburgh, United Kingdom, email: helloseanmorris@hotmail. com. The authors would like to thank the journal editor and the anonymous reviewers for 1