Case update (1):  Philosophical belief & gender critical beliefs

Summary:  Do gender critical beliefs, including the belief that sex is binary and irreversible, qualify for protection as a philosophical belief under the Equality Act 2010?

Yes, says the EAT in Forstater v CGD Europe available here.

Background:  To qualify for protection from discrimination, harassment and victimisation under the Equality Act 2010, an employee must show that they have a ‘protected characteristic’. One of these is holding a religious or philosophical belief.

There is no definition of ‘philosophical belief’ in the Equality Act. However, courts in previous decisions have found this to include a wide range of beliefs, from having no beliefs to ethical veganism or the catastrophic effects of climate change.

In its decision in Grainger plc v Nicholson the EAT set out the following five tests for whether a viewpoint is protected as a philosophical belief:

• The belief must be genuinely held;
• It must be a belief and not an opinion or viewpoint based on the present state of information available;
• It must be a belief as to a weighty and substantial aspect of human life and behaviour;
• It must attain a certain level of cogency, seriousness, cohesion and importance; and
• It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

Facts:  Ms Forstater worked as a consultant for the Center for Global Development (‘CGD’). During her time working for CGD, Ms Forstater posted a series of tweets which expressed gender critical views, i.e. that biological sex is immutable and cannot be changed.

In particular, Ms Forstater made remarks including “men cannot change into women“ and questioned the proposed reforms to the Gender Recognition Act 2004, which would enable people to self-identify as the opposite sex and legally transition from the gender assigned to them at birth without a medical diagnosis.

Some of Ms Forstater’s colleagues at work complained that they found her remarks on social media offensive and “transphobic“.  Following an investigation by CGD, Ms Forstater’s consultancy was not renewed.  Ms Forstater contended that this was because she had expressed gender critical opinions and brought a Tribunal claim for discrimination on the grounds of her philosophical belief.

Tribunal decision

A preliminary hearing was held for the Tribunal to decide whether Ms Forstater’s belief was a protected philosophical belief under the Equality Act 2010.

Ms Forstater explained her belief as being that “sex is a material reality which should not be conflated with ‘gender’ or ‘gender identity’. Being female is an immutable biological fact, not a feeling or an identity…”

The Tribunal held that Ms Forstater’s belief was not protected.  Although it accepted that her belief satisfied the first four tests set out in Grainger (see Background), it held that it failed the fifth test.  This was because Ms Forstater was ‘absolutist’ in her views and would refer to people by the sex she considered appropriate, even if it was offensive to them. This misgendering meant her belief was not worthy of respect in a democratic society, incompatible with human dignity and the fundamental rights of others.

Ms Forstater appealed and the Equality and Human Rights Commission supported her in the appeal.

EAT decision

The EAT upheld Ms Forstater’s appeal and found that her views were protected as a philosophical belief.

The EAT considered that a belief would only be regarded as not worthy of respect in a democratic society if it would be an affront to the European Convention of Human Rights principles “akin to that of pursuing totalitarianism or advocating Nazism or espousing violence and hatred in the gravest of forms“.

The EAT found that gender critical beliefs were widely shared (including amongst respected academics and some transgender people) and did not seek to destroy the rights of trans persons.  While the beliefs were offensive to some and had the potential to result in harassment of trans persons in some circumstances, they nevertheless gained the protection of the Equality Act 2010. The EAT also found that it was not the case that Ms Forstater’s beliefs meant she would always “misgender” trans persons – her position was more nuanced and context dependent than this.

The EAT considered that holding and expressing gender critical beliefs does not inherently interfere with the rights of trans people, even though some people may find such beliefs offensive or distressing. Also, the threshold for a belief to be protected should not be set too high.  To qualify for protection, a belief need only satisfy some minimum requirements.

However, the EAT clarified that:

• it does not mean that it has expressed any view on the merits of either side of the transgender debate;
• it does not mean that those with gender critical beliefs can misgender trans persons with impunity.  They continue to be subject to the prohibitions on discrimination and harassment that apply to everyone;
• whether or not conduct does amount to harassment or discrimination will be for a Tribunal to decide in any given case;
• trans persons can qualify for the protections against discrimination and harassment. Some trans persons will satisfy the definition of gender reassignment under the Equality Act 2010 and others may be able to rely on other protected characteristics;
• employers and service providers will still need to provide a safe environment for trans persons and will continue to be liable (subject to any ‘reasonable steps’ defence) for acts of harassment and discrimination against trans persons committed in the course of employment.

Implications:  This decision is particularly important as it confirms that courts and tribunals give a wide interpretation of philosophical beliefs capable of protection. This is emphasised by the EAT’s comment in this case that “very few beliefs” will fail to satisfy the fifth EAT Grainger test.

This means that, unless that decision is overturned by a higher court, the test is relatively easy to meet and we recommend employers act on the basis that an employee’s belief is covered.  The focus should instead be on whether there has been any discrimination, either by or against the employee.

In this case, the next step is for the Tribunal to consider whether the decision not to renew Ms Forstater’s contract was because of what she believed, the manner of her ‘manifestation‘ of that (i.e. the way she expressed her gender critical views), or something wholly unrelated.

Although the line between having a belief and manifesting it is a thin one, employers will now need to pay particular attention to this before taking action against those who express distressing or offensive views.  The mere fact that a belief is actually or prospectively repellent to others is not by itself enough (in light of the low bar to what is protected), it depends how it is demonstrated and whether that amounts to harassment or another form of discrimination.