Patterns in gender-critical belief discrimination

Peter Daly recently had an article published in DLA Briefings (Discrimination Law Association) reviewing the pattern of recent litigation in gender-critical belief discrimination claims and gives his personal view on the reasons behind the trend towards settlement of these claims. The article can be found, in full, below.

Claims of discrimination on the basis of gender-critical philosophical belief continue to attract coverage and controversy. It is now five years since the first employment tribunal judgment (Forstater v CGD & Ors ET 2200909/2019; December 18, 2019) and there have been a number of claims since then. These allow us to identify a series of patterns which have emerged, which distinguish litigation in this protected characteristic from others.

Settlement in the case of Frances v Department of Culture, Media and Sport and the Department of Science, Innovation and Technology(unreported; settled) attracted press coverage in January 2025. The case was brought by a civil servant alleging constructive dismissal on the basis of her gender-critical belief, and also on a separate philosophical belief in the integrity of the civil service. It settled relatively early – before disclosure – and was remarkable in the following respects: there was no confidentiality around the settlement, including its high value (the total of the schedule of loss, £116,000), and it resulted in public statements from two Whitehall permanent secretaries, committing their respective departments to significant redrawing of policies around sex and gender.

This followed settlement in the gender-critical case of Esses v The Metanoia Institute and the UK Council of Psychotherapy in 2024. In that settlement there was confidentiality over the financial award, but both respondents (who settled with the claimant at separate times) issued public statements acknowledging the claimant’s belief. Esses had litigated for two years until that point, and was awaiting a listing for an EAT hearing on an interlocutory judgment. A similar settlement was also reached in 2024 in Favaro v City, University of London.

The litigation approach

But prior to these 2024 settlements, the typical course of litigation had been an absence of settlement, and litigation to judgment and even to appeal. Some of these cases were very robustly litigated: Bailey v Stonewall Equality Limited and Garden Court Chambers ET 2202172/2020, July 25, 2022, was the subject of seven preliminary hearings, a 24-day full merits hearing and a two-day costs hearing, in which the claimant prevailed. Forstater had similarly significant hearing time. Phoenix v Open University ET 3322700/2021 & 3323841/2021, January 22, 2024, had a fourteen-day full merits hearing. Adams v Edinburgh Rape Crisis Centre ET/4102236/2023, May 14, 2024, was similarly lengthy. Meade v Social Work England and Westminster City Council ET/2200179/2022 and 2211483/2022, January 4, 2024, took ten days. Others, including Fahmy v Arts Council England ET/6000042/2022, June 21, 2023, were slightly shorter but still substantial.

All the claimants in these cases were successful.

New pattern of settlements

During 2024 however, a pattern began to emerge of settlement and respondent concession. As set out above, there were a number of settlements. In Pitt v Cambridgeshire Council ET/3311160/2023, the respondent conceded at the beginning of the full merits hearing. Similarly in Bird v Liberal Democrat Party (County Court) the defendant also conceded the claim.

What emerges then is a pattern of initially robustly-litigated claims becoming more likely to settle, and on terms which vindicate the claimant’s decisions to litigate.

Another pattern which emerges is the identity of the respondents. All of the cases mentioned above were defended by public or third sector organisations – charities, universities, local authorities, think tanks and regulators. There have been almost no cases brought against strictly profit-making entities (with one exception – Garden Court Chambers in Bailey, returned to below).

My view is that non-profit driven entities have a greater sense of moral identity and purpose, resulting in them (a) taking greater exception to being accused of discrimination which is seen as an attack on their very identity, thus defending the claims more robustly than otherwise might be the case; and (b) identifying more strongly, on a moral and non-commercial level, with the trans community, whom they perceive to be discriminated against by the existence of gender-critical beliefs. This has led them to robustly defend claims, and to adopt confused interpretations of the law, where a more commercial approach might have led to a different assessment of the legal merits of their defence at an earlier stage and thus concession or settlement (or an avoidance of the acts relied on by the claimants in bringing their claims).

The exception to the pattern of third- and public-sector defendants is Garden Court Chambers (motto: do right fear no one) in Bailey. While obviously a profit-making entity, Garden Court is a barristers’ chambers with an established and well-earned reputation for pursuing cases which advance the human rights of, often, the most disadvantaged members of society. It therefore fits the pattern of an organisation with a strong moral identity, notwithstanding its profit-driven nature.

Factors at play

What has led to this pattern? In my view, it is the following.

The first factor is the unusually high success rates for claimants. Of around 20 gender critical claims which have reached trial since 2019, all succeeded, with only three exceptions, two of which were litigants-in-person; (there was also a fourth case which failed on jurisdiction/employment status). Analysis undertaken by Professor Jo Phoenix (the claimant in Phoenix and a criminology and law academic) estimated that as at May 2024, the success rate including settlements was around 84%, contrasting with successful judgments in other Equality Act 2010 (EA) jurisdictions of 8-14% and only 3% in the religion or belief discrimination jurisdiction more broadly.¹ While (as Phoenix acknowledges in her paper) an exact statistical analysis of all cases is not possible because of the confidentiality of some settlements, there is plainly an anomalously high success rate for gender-critical claimants.

The second factor is the high profile of the cases. This is perhaps exemplified by the latest gender-critical case, Peggie v Fife Health Board and Dr Elizabeth Upton which is featuring heavily in the news cycle at the time of writing. Midway through the full merits hearing in February 2025, the ET had to cut the link to observers, such was the demand on the court’s cloud video platform server (there was commentary that over 1,000 members of the public had logged on to watch the proceedings). This is a pattern which has extended for several years now, with hundreds of observers present on hearings, and extensive media commentary.

Linking factors one and two is the use of crowdfunding: many of these cases have crowdfunded with great success (several raising six figure contributions towards legal fees). This has resulted in greater publicity and attention as the claimants have had to raise their profiles to raise funds; and it has confounded the typical pattern of tribunal litigation, where claimants can traditionally expect to be outspent by institutional or corporate opponents, and may therefore be forced into settlement. The availability of significant funding allows claimants to access more specialist legal advice, and to be able to engage in longer trials such as those set out above.

A further factor is, in my view, a growing realisation that the received understanding of the law in this area has been mistaken. The slogan ‘trans women are women’ is admirably clear and straightforward, but it does not form a complete basis for compliance with the EA – a trans woman without a gender recognition certificate is legally a male for the purposes of the EA (For Women Scotland v Scottish Ministers No.2), Second Division, Inner House, Court of Session, [2023] CSIH 37; [2024] Briefing 1081; November 1, 2023, at para 45 (FWS).² Nevertheless, ‘trans women are women’ was accepted as an accurate statement of the EA, and the basis for workplace policies and procedures for many years (and continues to be so, by some).

This is one example of mistaken understanding in this area, the full extent of which remains necessarily obscured. The pending Supreme Court judgment in For Women Scotland v The Scottish Ministers (No. 2) UKSC/2024/0042 may go some way to clear up the confusion. But there has been confusion around the meaning of ‘sex’ in the EA, and as a consequence confusion on the obligations on employers and service providers towards people with the protected characteristic of gender reassignment, single sex services, and the extent to which gender-critical beliefs are protected at law.

As each claimant in these claims has succeeded, there has been growing realisation among respondents in other cases that their litigation position was perhaps not as robust as they had originally thought, hence necessitating settlement or concession.

The final factor is that there has been a shift in public opinion. YouGov polling released in January 2025 shows that there has been a significant change of opinion among the public on questions relevant to sex and gender over recent years. For example, a majority of respondents now agree with the classically gender-critical proposition that transgender women should not be able to use women’s changing rooms, whereas a majority disagreed in 2022. Whether this is a direct consequence of the success of gender critical litigants is impossible to say; but public opinion reflects in how organisations run themselves as much as it reflects in polling. It seems logical that, as opinions shift in this area, so too does the appetite that employers may have for litigating against what is now a popularly held set of opinions.

Next steps?

What comes next? The SC in FWS ought to clarify the law yet further. A resolution of the ‘gender wars’ may or may not be possible, but there is a clear recent pattern of respondents losing their appetite to litigate claims, and a long-term pattern of anomalous levels of success for gender-critical claimants who do litigate. If clarity in the law results in a reduction in the frequency of discriminatory conduct against those with gender-critical beliefs, then there will be a reduction in the frequency of resulting claims; and if there is not, it seems reasonable to assume that the recent pattern of significant and expensive settlements will continue.

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^1. Don’t Get Caught Out: A Summar of Gender Critical Belief Discrimination Employment Tribunal Judgments. Phoenix, Jo & Birchall, Ruth. 2024: Reading University. https://centaur.reading. ac.uk/118472/8/Dont%20Get%20Caught%20Out%20final%20%28002%29.pdf

^2. This point was not taken on appeal to the SC, so remains good law regardless of the outcome of the pending SC judgment.