@JanesLittleGirl Sorry, real life got in the way - my daughter was sick. She's OK now.
@OldCrone no, I am not the person to inform you what "transgender" means. There are plenty of sources for that. The definition of gender reassignment in law will do just fine for this purpose. It's in the EqA.
As an aside, if Harry Potter fan fiction turns you trans, Joyce is taking a big risk judging by the amount of research she is clearly doing. Totally worth it, though.
On to Joyce's article and her comments on discrimination.
There have been a number of cases recently where employers have taken a high-handed attitude against employees which do not take account of Forstater and really do not follow process. They relate more to discrimination against people with gender critical beliefs rather than undermining transgender people's rights in their work place.
She criticises A Practical Guide to Transgender Law, which was based on the law as it then stood before Forstater ETA, for reflecting the law as it stood before the Forstarter ETA. She then confuses "manifesting" a belief with being able to proselytize at work - an error in law. Obviously, when your beliefs come into conflict with work practices which impact your belief, then "manifestation" becomes important.
"In order to count as a “manifestation” within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question"
It's the objectionable manifestation of the belief which can cause discrimination.
"Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."
It's this last clause which is where the conflict arises.
The Forstater ETA set a very low bar for Grainger, and gender critical beliefs meet this threshold, as is lack of belief in structural racism and refusal to marry gay people.
"To establish that holding particular beliefs in respect of transgender persons per se falls foul of the Grainger test part V, it now appears to be necessary to shown that the belief is an equivalent of Nazism or totalitarianism, such that transgender persons should be not afforded the general rights and protections of other citizens"
Employers are obliged to make reasonable accommodations for people with protected beliefs. Excluding a category of person who is permitted in space because of your beliefs would not be a reasonable accommodation. For example, forcing trans women to use men's bathrooms in the work place because another employee is gender critical would be discrimination against transgender people. A reasonable accommodation would be, for example, to provide a single user cubicle for anyone to use, including the transgender person.
No one can be forced to provide their pronouns at work, but not using the correct pronouns for colleagues and service users can be discriminatory (Mackereth). The fact that someone has a belief does not give them the right to treat other people in a manner that conflicts with their employer’s legitimate requirements and the law.
From Forstater “This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else"
Forstater stated "she would respect people's identities and pronouns in a professional setting," and "She accepted, however, that her views should be kept out of the workplace unless there was a specific invitation to talk about it and that she wouldn’t bring other materials into the office" or the judgment might have been quite different. How beliefs manifest is restricted.
Sex Matters agrees "Avoiding creating a hostile environment for a transgender person at work or as a customer or student is clearly a legitimate aim for a policy."
However, every ET or court case is highly dependent on circumstances.
We need more case law on what is legitimate and proportionate, and what constitutes direct and indirect discrimination.
This can put employers in a very difficult position. If, for example, your diversity policy supports LGBT people, and one of your employees in a private capacity pubically posts legal but homophobic or transphobic comments based on a protected belief, and people threaten to boycott your company, you are in somewhat of a bind.