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.
Charles Russell Speechlys advises shareholders of eCommonSense on sale to ECI Software Solutions
eCommonSense is a technology solutions provider focused on the construction and building materials supply sectors.
New Criminal Offences – Pensions Regulator’s Approach
Tom and Esther take a look at the Pensions Regulator's recently published guidance on their new powers
Charles Russell Speechlys advises the founders of Compandben on the sale of the business to TopSource Worldwide
Compandben is one of the longest established international providers of employment solutions.
Sophie Lockwood writes for Employment Law Journal on the challenges for employers when managing the return from furlough
With the CJRS ending on 30 September 2021, many employers are turning their minds to managing employees’ return from furlough.
Charles Russell Speechlys Hong Kong successfully defends equal opportunities action brought against Novartis
We have successfully defended NYSE-listed healthcare company Novartis against an equal opportunities action filed by a former employee.
The Tip of the Iceberg of Changes to a Modern Hospitality Industry? Hospitality staff entitled to keep all tips under new rules
Flexible working requests: 5 tips for employers
Charles Russell Speechlys advises Acora on acquisition of Westgate IT
Westgate IT specialises in providing IT support to businesses in the South West.
Nick Hurley quoted by the Society for HR Management on the UK government's proposals to prevent workplace sexual harassment
The U.K. government introduced legislation in July 2021 for employers to take proactive steps to prevent sexual harassment on the job.
Returning to work post-lockdown: FAQs for employers
We look at some of the main issues employers may face and the key steps to consider as restrictions ease.
Covid passports - are they workable or just a shambles?
Amelia Goodwin writes for Civil Society on a recent employment tribunal ruling which found that anxiety constitutes a disability
The tribunal found that an anxiety state constitutes a disability for the purposes of the Equality Act 2010.
Face coverings at work post lockdown
While the legal requirement has been lifted, employers may consider face coverings as an appropriate safety measure in certain workplaces.
Charles Russell Speechlys advises Apposite Capital on acquisition of i2a Diagnostics
i2a is a leading provider of laboratory instruments, software and reagents for the clinical microbiology market in France.
Brace yourselves: dentists could be liable for actions of self-employed staff
Nick Hurley interviewed by GB News on the legal ramifications of employers insisting employees have the COVID-19 vaccine
Nick considers the potential dangers of employers setting a precedent by adopting a 'No Jab, No Job' policy.
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.