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.
Government to introduce duty on employers to prevent sexual harassment
Record success for Charles Russell Speechlys’ Private Wealth practice in Chambers HNW 2021 directory
We are delighted to have once again been recognised as a leader in our field in the Chambers High Net Worth 2021 Guide.
Michael Powner writes for People Management and explains how employers can carry out an equal pay audit
How do employers carry out an equal pay audit?
COVID-19 Vaccination – can an employer make it compulsory for employees?
We review what legal issues to take into account when considering to make vaccination compulsory as an employer.
Changes to Right to Work Checks from 1 July 2021
EEA citizens and their family members are required to evidence immigration status in the UK, in the same way as other foreign nationals.
Changes to Right to Rent Checks from 1 July 2021
Following the UK’s departure from the EU, the right to rent checks grace period of six months will end on 30 June.
Michael Powner and Laurence Whymark write for The Caterer on the implications of the new tipping laws on the hospitality industry
Operators will soon have to pass on tips to staff without deductions.
Top 7 Data Protection Tips for Employers
Here are our top 7 data protection tips for employers.
Nick Hurley quoted by the Daily Mirror on the legal implications of implementing a 'No Jab, No Job' policy
"'No jab, no job' may seem clear and concise, but whether an employer can make it mandatory is far from straightforward.
Charles Russell Speechlys advises Avicenna Group on duo of pharmacy group acquisitions
The acquisition takes Avicenna to a total of 135 pharmacy branches.
Briony Richards writes for Employment Law Journal on when an employer can dismiss for expression of faith-based views
Briony Richards examines two recent cases in which a Christian claimed he was discriminated against due to his beliefs.
Rachel Warren writes for People Management on how businesses should deal with sexual misconduct allegations
Rachel Warren outlines the pitfalls for unwary employers dealing with workplace sexual harassment claims.
Lucy Heath quoted by People Management on the value of HR expertise to an organisation
A qualified HR person, whether in-house or external, will have the right qualification and know how to handle issues.
Do You Believe?
Linking ESG and Executive Pay
How does a business go about embedding a focus on strong ESG performance into the structures and culture of its organisation?
Amelia Goodwin and Georgina O'Sullivan write for Pharmacy Business on managing employee performance
Why contractors should prioritise performance management of employees as a regular feature of their business strategy.
Have your say: MAC call for evidence on Intra-Company Visa Route
The MAC, has launched a call for evidence on the Intra-Company Transfer (ICT) immigration route.
Sleep-in workers not entitled to NMW for entire shift
A unanimous ruling by The Supreme Court in the Royal Mencap v Tomlinson-Blake and another case.
Amelia Goodwin quoted by People Management, Home Care Insight and Care Home Management on the implications of the Supreme Court's ruling in Royal Mencap Society v Tomlinson-Blake
The court found that care providers do not have to pay the minimum wage to staff for time that they are asleep but on call during shifts.