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Gender-critical views amount to a 'philosophical belief' under the Equality Act

16 June 2021
The EAT has held in Forstater v CGD Europe and ors that 'gender-critical' beliefs, including a belief that biological sex is real and immutable and not to be conflated with gender identity, are protected under the Equality Act 2010 ('Equality Act') and Article 9 of the European Convention on Human Rights (‘ECHR’).

Facts

Maya Forstater was engaged as a writer, researcher and adviser for the Centre for Global Development, Europe ('CGDE'), pursuant to a consultancy agreement.  In 2018, in response to a government consultation on proposed amendments to the Gender Recognition Act, Ms Forstater expressed a series of opinions regarding transgender issues on her personal social media.  In particular, she said that sex is biologically immutable, i.e. there are only two genders, male and female, and it is not possible to change sex.  Some of Ms Forstater's colleagues complained that her comments were offensive and, following an investigation, her consultancy agreement was not renewed. 

Ms Forstater brought a claim in the employment tribunal, stating that the decision not to renew her consultancy agreement was because of her gender-critical opinions, which fell within the protected characteristic of a philosophical belief, and was therefore directly discriminatory.  She argued that her comments were manifestations of her philosophical belief that a person's 'sex' is a material reality which should not be conflated with gender or gender identity, that being female is an immutable biological fact, not a feeling or an identity, and that a transwoman is not in reality a woman. 

The issue of whether this belief is protected by the Equality Act was addressed by the tribunal at a preliminary hearing.  The employment tribunal applied the test from Grainger plc and ors v Nicholson, that: (i) the belief must be genuinely held; (ii) it must be a belief and not an opinion or viewpoint based on the present state of information available; (iii) it must be a belief as to a weighty and substantial aspect of human life and behaviour; (iv) it must attain a certain level of cogency, seriousness, cohesion and importance; and (v) it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.  

The employment tribunal found that Ms Forstater's belief met the first four criteria, but not the fifth.  It said that as her belief was absolutist in nature, it was not worthy of respect in a democratic society and not, therefore, a protected belief under the Equality Act.

Ms Forstater appealed the decision.

EAT decision

The appeal was allowed.
The EAT found that the employment tribunal had erred in its application of the Grainger criteria, in particular the fifth criterion, where it had strayed into an evaluation of the Claimant's belief which was irrelevant in determining whether the belief qualified for protection under the Equality Act.  

The EAT confirmed that beliefs which are offensive, shocking or disturbing to others would not necessarily be excluded from protection under the European Convention on Human Rights ('ECHR'); a belief would only fail to be protected if it was the kind of belief that was one of the gravest forms of hate speech, akin to Nazism or totalitarianism.  The judgment said that although Ms Forstater's beliefs might be considered shocking and cause offence to some, the potential for offence cannot of itself be a reason to exclude a belief from protection altogether.  It noted that her beliefs were widely shared, including by respected academics and some transgender people, and did not seek to destroy the rights of trans persons.  Her beliefs did not come close to the kind excluded from protection.  

The EAT made clear that by giving its judgment it had not expressed any view on the merits of either side of the transgender debate, and nothing in its decision should be regarded as it doing so.  Neither did it mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity.  Such persons will continue to be subject to the rules on discrimination and harassment, and whether conduct in a particular situation amounts to discrimination or harassment will remain a question to be determined based upon each specific set of facts.  It also made clear that the judgment did not mean that trans persons have no protection against discrimination and harassment under the Equality Act.  The EAT emphasised that employers and service providers who are unable to provide a safe environment for trans persons could continue to be liable (subject, of course, to any applicable defence) for acts of harassment and discrimination against trans persons committed in the course of employment.

Comment

Although the appeal has been allowed, this does not mean the Claimant has been successful in her claim. The case will now go back to an employment tribunal to determine whether CGDE acted unlawfully when it failed to renew Ms Forstater’s consultancy agreement.

The effect of the EAT judgment is that, in certain circumstances, holding gender-critical beliefs could amount to a protected characteristic under the Equality Act, and it will be unlawful for employers or service providers to discriminate against or harass their employees or customers for holding or expressing such beliefs.  The EAT did go on to clarify that those with gender-critical beliefs cannot indiscriminately and gratuitously refer to trans persons in terms other than they would wish.  Such conduct, depending on the circumstances, could amount to harassment of, or discrimination against, a trans person.  The judgment serves as a reminder to employers to ensure their equality and harassment policies are up to date, and that appropriate training is in place for employees.

Authored by Joanne Frew and Emily Helm

Gender can be a notoriously sensitive subject.  If we can be of any assistance with the issues raised in the update please get in touch.  

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