Lister v New College Swindon – Gender Critical Beliefs protected by the Equality Act 2010

29th April 2024

By Solicitor, Jake McManus.


Mr Lister was a teacher who held the gender critical belief that sex is “binary, immutable and a biological fact that should not be conflated with gender identity”. In September 2021, one of Mr Lister’s pupils asked him to call them by a male name and use male pronouns, as that is how they wished to be identified. Mr Lister initially logged a safeguarding concern with the College’s safeguarding team, who concluded there were no concerns. At first, Mr Lister used gender neutral terminology when communicating with the pupil. However, when challenged, he likened transitioning to a mental health issue, and described transitioning as irreversible and would cause long term medical problems. This resulted in several complaints being raised against Mr Lister in respect of his conduct and comments and following an investigation, he was dismissed.

The College were proactive in their support of transgender pupils having both a Gender Reassignment and Safeguarding and Child Protection Policy in place, which sought to ensure fair treatment of both staff and students who were “living in or intended to live in a gender other than that previously ascribed to them”.

Mr Lister lodged a claim that his gender critical beliefs were protected under the Equality Act 2010 and he asserted that there was no legal obligation to use what he considered incorrect pronouns in relation to a transgender student. Mr Lister claimed that he was subject to unfavourable treatment for having manifested his beliefs. He submitted that he had merely attempted to protect the pupil from, what in his view was, serious and imminent risk by using cross-sex hormones.

The Tribunal dismissed his complaints. They found that Mr Lister had reasonably met his safeguarding obligations when he referred his concerns about the pupil to the College’s safeguarding team. However, despite being unhappy with the outcome, he didn’t escalate this with the College, he decided to resolve it directly with the pupil. The Tribunal suggested that it was inappropriate for Mr Lister to share his personal beliefs with students or to manifest them in a way that could amount to discrimination or harassment of a transgender student especially due to the power imbalance between him and the pupil.

Ultimately the Tribunal decided that dismissing Mr Lister was a proportionate response in the circumstances. He had discriminated against and harassed a pupil and had made it clear that he had no intention of changing his behaviour in the future. Therefore, the Tribunal agreed that it was a reasonable step for the College to dismiss him.

Key takeaway points

This decision highlights the need for employers to balance transgender rights and gender critical beliefs in the workplace. Here Mr Lister was not prevented from holding his gender critical beliefs, nor was he treated differently because of them when compared to employee who didn’t share his belief. What he was not allowed to do was to exploit a clear power imbalance, fail to adhere to College policies and cause emotional harm to a child.

Employers need to be aware for the risk of discrimination in the workplace (particularly where there is the potential for rights to clash), and should have appropriate policies and measures in place to deal with these issues. This should include arranging appropriate training for all employees to mitigate the risks, and to potentially provide a defence to any claims.

If you would like any help putting in place relevant policies or assistance with training your workforce, please get in touch with a member of the team.

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