Since the enactment of the Gender Recognition Act in 2005, individuals have had the ability to change the sex recorded on their birth certificates. The Act makes no provision for the recognition of any other gender, such as “gender fluid” or “non-binary”. 

The Equality Act provides that a person has the protected characteristic of gender reassignment if they are proposing to undergo, are undergoing, or have undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex. There is therefore no need to have a gender recognition certificate or any medical procedures to have the protected characteristic. A person who starts the gender reassignment process but then decides to stop still has the protected characteristic of gender reassignment. 

Recent developments in some parts of society’s understanding of gender identity potentially involve a greater degree of flexibility than gender being defined on a birth certificate or a gender recognition certificate. Some may consider that the legal approach to defining gender might be out of step with current societal approaches to the meaning of gender. However, there are some who hold very different views. 

Since 2021, gender critical beliefs, such as the view that sex is fixed and should not be conflated with gender identity, qualifies for protection under the Equality Act 2010. The belief doesn’t need to relate to a particular religion to be protected. In the case that made that position clear, the Claimant was ultimately awarded over £100,000 because of the organisation’s handling of the matter. 

So a belief is capable of protection even if that belief may be considered profoundly offensive and even distressing by some. To gain protection, the belief requires to be worthy of respect in a democratic society and the recent case clarified that a belief would only fail on this ground in very limited circumstances (for example encouraging violence). 

However, the law is clear that this does not allow those with gender critical beliefs, for example, to say or do what they like so long as it is linked with their protected beliefs, rather, they will continue to be subject to the prohibitions on discrimination and harassment under the Equality Act. 

What does this mean in practice? Those who have these protected beliefs (whether gender critical or otherwise) may hold the belief, but they can’t do so in a way that harasses or discriminates against others. If they do so, they could be held liable as well as the organisation. Essentially, as all protected beliefs are equally protected, a business must strike a fair balance between allowing freedom of speech and tolerating opposing beliefs and ensuring everyone can work in a safe environment that is free from discrimination and harassment. 

A further development in Scots law relating to this area was brought into force on 1 April 2024 through the new Hate Crime Act. This Act creates a new criminal offence of stirring up hatred against people based on race, colour, nationality or ethnic or national origins.  

An understanding of the community and robust information systems to record and report incidents, concerns and complaints, will support the organisation to address these issues sensitively and effectively in practice. 

A carefully developed and comprehensive training programme should be an integral part of any organisation’s approach to equality, inclusion and diversity, and safeguarding. 

Whether an approach can be legally justified will always be context-specific. But regardless of what the legal position is, there are reputational and practical considerations for the organisation. 

Note: Material on this platform is not legal advice but we’re here to point you in the right direction if needed.