Recent case law developments have underscored the complexities of managing gender critical beliefs in the workplace, highlighting the principle that employees are entitled to hold such beliefs but that employers retain the right - within limits - to maintain a respectful, non-discriminatory environment. A central narrative stems from the March 2025 Court of Appeal (CoA) judgment in the case of Kristie Higgs v Farmor’s School, in which Ms Higgs challenged her dismissal over Facebook posts expressing her disapproval of the teachings of gender fluidity. The CoA held that her dismissal was discriminatory because the school’s actions were disproportionate and insufficiently attentive to less severe responses that might have satisfied its legitimate aims. Below is a comprehensive discussion of the key points that arise from this ruling, as well as practical guidance for employers navigating gender critical beliefs within their workforce.
Balancing conflicting rights and freedoms
Employers seeking to maintain an inclusive culture are often caught in a balancing act between protecting the rights of those who hold gender critical beliefs and safeguarding the rights of others—such as transgender employees—who may feel threatened or harassed by certain expressions of these beliefs. Both sets of rights deserve protection, as the Equality Act 2010 prohibits discrimination on the basis of religion or belief while also prohibiting discrimination against people who have undergone, or are undergoing, gender reassignment. At the same time, employees who believe in the immutability of biological sex, often referred to as “gender critical beliefs,” also have the right to hold these beliefs, as confirmed in Forstater v CGD Europe and Others. Any disciplinary action or dismissal that is principally motivated by the mere existence of those beliefs could trigger claims of unlawful discrimination. Still, courts have repeatedly emphasized that protection of a belief does not place that belief beyond reproach. In every instance, the focus must remain firmly on how the belief is manifested and whether that manifestation is proportionate in light of important workplace considerations such as respect, safety, and organisational culture. These themes emerge prominently in the Court of Appeal’s March 2025 ruling.
The Higgs case: proportionality at the forefront
Protecting the Belief vs. Punishing Its Manifestation
The CoA found that Ms Higgs’s expressions of her beliefs, conveyed through personal Facebook posts, could indeed be viewed as protected speech linked to her religious and/or philosophical beliefs. The tribunal had originally found that her beliefs qualified for protection under the Equality Act 2010. However, they concluded that her dismissal was not motivated by the beliefs themselves; rather, it was motivated by perceived reputational risks that her posts posed for the school. The EAT took a different approach by emphasizing that the link between the posts and her beliefs had not been adequately explored. On further appeal, the CoA concluded that the concerns and future reputational risks were too speculative to justify the extreme measure of dismissal. Instead, a more nuanced, less intrusive form of disciplinary action could have been undertaken.Assessing the Practical Evidence
The CoA was influenced by the lack of evidence that Ms Higgs had ever discriminated against students, displayed hostility toward the LGBTQ+ community in her day-to-day role, or sought to impose her beliefs on pupils. Without tangible, significant workplace harm, the extreme response of dismissal was disproportionately severe. This finding is consistent with prior decisions such as Forstater, in which the tribunal reaffirmed that while employers have legitimate interests in preventing harassment or reputational damage, they must carefully balance these interests with employees’ protected rights under the Equality Act 2010.Underlying Test of Proportionality
The CoA referenced a four-part test for determining whether a limitation on freedom of expression is proportionate:Whether the employer’s objective is sufficiently important to justify limiting freedom of expression.
Whether the limitation is rationally connected to that objective.
Whether a less intrusive measure could have achieved the same aim.
Whether the severity of the limitation outweighs the importance of the objective when weighed in the balance.
By failing to consider alternatives to dismissal, Farmor’s School fell short of demonstrating that the action taken was the least intrusive method of protecting its legitimate concerns, resulting in unlawful discrimination.
Manifestation of gender critical beliefs vs. unlawful conduct
A recurring theme in recent case law is the nuanced distinction between the mere holding of a belief and its manifestation in the workplace, which may, under certain circumstances, be injurious or offensive. Courts have recognized that religion or belief is protected under the Equality Act 2010, but the protections do not extend to conduct that crosses the line into harassment, bullying, or targeted intimidation.
Key illustrations from recent cases
Orwin v East Riding of Yorkshire Council
This example demonstrates the limit of permissible expression in the workplace. Mr Orwin’s use of an email signature reading “XYchromosomeGuy/AdultHumanMale” was seen as intentionally provocative—a manifestation of his beliefs in a manner designed to antagonise transgender and gender nonconforming people. His refusal to engage with the Council’s attempts to find a solution resulted in dismissal, which was ultimately considered a proportionate response. The difference between Orwin and Higgs is the provocative tone and near-mocking approach in Orwin, contrasted with the comparatively moderate style in Higgs, who did not direct or target specific students or colleagues.Ngole v Touchstone Leeds
While the employer’s concerns about safeguarding vulnerable populations were legitimate, the tribunal found that withdrawing Mr Ngole’s job offer before giving him a fair chance to address the issue was disproportionate. However, refusing to reinstate the offer after a second interview, because the employer was unsatisfied with his potential for unbiased, inclusive service, was deemed lawful. This two-stage approach underscores how carefully assessing each step can demonstrate a balanced and proportionate response.Forstater v CGD Europe and Others
The well-known Forstater case, which predates the 2025 rulings but remains extremely relevant, clarifies that simply finding someone’s beliefs objectionable, or worrying that they might cause offense, is not enough to dismiss them or refuse to renew a contract. The employer must show that the manifestation of the belief was unreasonable or harmful in context and that no less severe action could have safely addressed the potential harm.
Practical measures for employers
Employers must navigate these issues with clarity and sensitivity, designing policies that both protect vulnerable groups and uphold freedom of expression. Especially in the post-Forstater era—and now with the heightened emphasis on proportionality following Higgs—businesses must carefully consider whether disciplinary action is legitimate, proportionate, and the least intrusive way to manage potential conflicts. Below are recommended strategies:
Clear Policies on Acceptable Behaviour and Social Media Use
Employers should maintain robust guidelines on acceptable behaviour that explicitly prohibit harassment, hate speech, and discrimination, while clarifying that staff have the right to hold personal beliefs.
Social media policies ought to specify clear boundaries regarding negative references to protected groups and remind employees that the manner, tone, and audience matter greatly in avoiding offense. Refer to real examples, such as the Orwin scenario, to illustrate how a borderline mocking approach or repeated refusal to compromise is unlikely to be considered proportionate expression.
Proactive Training and Awareness Programmes
Conduct targeted training sessions on the Equality Act 2010, focusing on the concept of religion or belief and how it relates to gender critical viewpoints.
Ensure that employees are aware that beliefs are not absolute shields against disciplinary proceedings if those beliefs are manifested in a manner that violates workplace standards. Clear examples of proportionate vs. disproportionate discipline can support consistent decision-making.
Tailored Support for Marginalised Groups
Employers can implement extended support mechanisms for employees who may feel marginalised. This might include safe spaces, employee resource groups, or specialised counselling.
Introducing these resources can help reduce tension and give both sides a forum for respectful dialogue, thus lowering the risk of immediate conflict escalating to dismissal or formal complaints.
Careful Investigations and Documentation
Before taking any disciplinary action, employers must investigate thoroughly, gathering factual evidence of how the belief in question was manifested and whether it caused harm or risked causing harm.
The direct link between the manifestation and real or potential harm (e.g., reputational damage, harassment, or diminished team cohesion) should be explicitly documented as part of any justification for a disciplinary measure. As the CoA found in Higgs, an overly speculative assumption about reputational harm, absent evidence of wrongdoing, will be considered disproportionate.
Proportional Sanctions and Alternatives to Dismissal
Ensure that disciplinary decision-makers routinely explore whether a formal warning, mediation, or a request to moderate the manner of expression would suffice. In some instances, moving an employee to a non-client-facing role (where feasible) could be a proportionate option.
Dismissal should typically be a last resort, undertaken only if there is clear evidence that an employee’s conduct amounts to serious misconduct or repeated intransigence in the face of reasonable alternative measures.
The proportionality test in practice
The newly refined emphasis on proportionality is quickly becoming a cornerstone principle in resolving disputes over gender critical beliefs. As spelled out in the CoA’s discussion of Ms Higgs’s dismissal, the test for determining whether an employer’s response is balanced will generally revolve around the following considerations:
Legitimate Aim
Employers will often cite legitimate aims, such as preserving a respectful environment, preventing discrimination or harassment, or safeguarding organisational reputation. However, as the Higgs and Ngole cases demonstrate, reciting a broad aim is insufficient if there is little evidence to show that an employee’s speech rises to the level of genuine harm.Rational Connection
A direct causal link between the employee’s conduct and the alleged harm must be established. If the employee’s expression is more personal, is not targeted at a colleague, or has little direct bearing on workplace operations, the rational connection may be harder to prove.Less Intrusive Measures
Employers must attempt less intrusive solutions first, such as clarifying expectations, offering alternative postings, adopting disclaimers, or implementing a staged disciplinary approach. Omitting these less aggressive measures can render a dismissal or harsh sanction disproportionate.Overall Balance
Ultimately, the employer’s rationale for the sanction must outweigh the employee’s right to hold and express their belief. This is a sensitive balancing exercise that will always be dependent on the precise context. The CoA’s message is clear: a blanket rule of punishing certain expressions of belief without exploring milder approaches can easily cross the line into unlawful discrimination.
Maintaining a culture of tolerance and pluralism
Where an organisation fosters a genuinely pluralistic environment, employees may be more open to collaboration and resolution when disputes regarding gender critical beliefs arise. Here are several considerations:
Neutral Facilitation of Controversial Discussions
Employers should neither endorse nor stigmatize a particular stance in the gender-critical vs. gender-affirmative debate. By adopting a neutral posture and focusing on respect and civility, companies reduce the risk that disciplinary actions will be viewed as targeting individuals for their beliefs.Encouraging Respectful Language
Respectful language is essential in organizations that are genuinely inclusive. For instance, requiring employees to use colleagues’ preferred pronouns is often cited as a legitimate policy - provided that there is proportionate reasoning, such as safeguarding staff from harassment and maintaining workplace harmony. The Mackereth case (an older but still relevant EAT decision) upheld an employer’s policy that staff must address transgender service users in their chosen pronouns to avoid mental distress and prevent discrimination.Avoiding Automatic Knee-Jerk Reactions
When controversial views surface, it can be tempting to issue immediate suspensions or dismissals. The 2025 CoA decision in Higgs demonstrates that such reactions can be perceived as manifestly excessive if the underlying conduct is not severe or if no alternative steps have been explored. Careful assessment and a calm, evidence-based approach are crucial.Consistent Enforcement of Policies
Robust and consistently applied policies foster trust and reduce the appearance of singling out specific beliefs. An employer who punishes one employee for a Facebook post critical of gender identity but excuses another for a different type of potentially offensive workplace commentary creates a risk of discrimination complaints.
A nuanced and evolving landscape
The March 2025 Court of Appeal ruling in Kristie Higgs v Farmor’s School cements an already developing principle: employers who dismiss individuals on account of gender critical beliefs must be prepared to show a proportionate, evidence-based response that addresses legitimate concerns around harassment or reputational damage. Punitive action based on speculation, peripheral reputational fears, or a mere disagreement with the belief’s content is increasingly likely to be found unlawful. A one-size-fits-all approach is untenable; each situation demands meticulous balancing of an employee’s right to express a belief, the organisation's legitimate interest in ensuring inclusion, and the real-world impact on colleagues and stakeholders.
Ensuring that staff are fully trained on equality and diversity rules, that line managers are skilled in engaging in constructive dialogue, and that robust, proportionate disciplinary frameworks are in place will be critical. By integrating the lessons from Higgs, Orwin, Ngole, and Forstater, employers can respond responsibly and lawfully to gender critical expressions while maintaining an inclusive environment for everyone.
Critically, the overarching message from the courts - and reinforced by the Court of Appeal - is that employers must focus on how an employee manifests a belief, weigh any demonstrated harm, and choose the least intrusive, proportionate means of preserving harmony and inclusivity. In a world where demographic shifts and online discourse continue to push global conversations on gender identity, these principles offer employers a roadmap to navigate the complexities of gender critical beliefs with fairness and legal compliance.
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