The EAT has held that “gender critical” beliefs are protected under the Equality Act 2010
The Employment Appeal Tribunal (EAT) has held that “gender critical” beliefs come within the definition of philosophical belief under the Equality Act in Forstater v CDG Europe. In reaching this decision the EAT was very keen to emphasise that it was not expressing any views on the merits of either side of the transgender debate, it did not mean that those with “gender critical” beliefs could “misgender” with impunity; trans persons would still have protection against discrimination and harassment and it did not mean that employers and service providers would not be able to provide a safe environment for trans persons.
Ms Forstater was a visiting fellow with CDG Europe, a non-for-profit think tank. Her contract was not renewed following an investigation into complaints by colleagues about the views she had expressed on social media about gender identity issues. She believes that sex is a material reality and should not be conflated with gender or gender identity. She considers statements such as “woman means adult human female” is a true statement of neutral fact. She claimed she had been discriminated against because of her “gender critical” beliefs.
At a preliminary hearing on whether her belief amounted to a philosophical belief within the Equality Act 2010 the Employment Tribunal found that she satisfied all the criteria set out by the EAT in Grainger plc v Nicholson except the fifth criterion which was that the belief must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others. The Tribunal concluded that her beliefs were not protected because of their absolutist nature. This was because she would refer to a person by the sex she considered appropriate even if it violated their dignity and this was therefore not worthy of respect in a democratic society. She appealed.
The EAT held that the tribunal had incorrectly applied the fifth Grainger criterion. A philosophical belief would only be excluded if it was the kind of belief that would be excluded from Convention rights by virtue of Article 17 which prohibits abuse of rights such as Nazism or totalitarianism. It is not for the state to look at the validity of a belief and the freedom to hold a belief goes hand in hand with the state being neutral as between competing beliefs, refraining from expressing judgment and ensuring tolerance. This was the foundation of living in a pluralist democracy.
In looking at whether a belief was worthy of respect in a democratic society the EAT stated that Ms Forstater’s “gender critical” beliefs were shared by many including respected academics, the common law itself is binary and she was not seeking to destroy the rights of trans persons. Although her beliefs might be offensive to some and notwithstanding the potential to result in the harassment of trans persons in some circumstances, her beliefs fell within Article 9 and therefore came within the protection of the Equality Act.
It is important to remember that this decision only considers whether her “gender critical” beliefs were a protected characteristic. This does not mean that the manifestation of those beliefs would be protected if they amounted to unlawful harassment and the EAT flagged up that employers continue to be liable for acts of harassment and discrimination against trans persons committed during the course of employment. It means that those with “gender critical” views will be protected against harassment and discrimination. However, it does not mean that someone with those beliefs can refuse to use a trans person’s preferred pronoun and to do so is likely to constitute unlawful harassment. This is a highly contentious topic and is likely to result in cases involving competing rights similar to those involved in sexual orientation and religious beliefs and much will depend on whether the case hinges on the beliefs themselves or the manifestation of those beliefs.
This decision confirms what amounts to a philosophical belief has a broad scope provided it satisfies the Grainger criteria and can include beliefs that cause offence or distress. The case will now return to the Tribunal for it to determine whether Ms Forstater was discriminated against because of her beliefs.