Gender critical beliefs can be protected philosophical beliefs under the Equality Act

The EAT has today allowed the appeal in Maya Forstater v CGD Europe and others, holding that gender-critical beliefs, including the belief that sex is binary, immutable and not to be conflated with gender identity, did qualify for protection as a philosophical belief under the Equality Act.

The Claimant had engaged in debates on social media about gender identity issues, and in doing so made some remarks which some transgender people considered offensive and “transphobic”. Some of her colleagues at work complained that they found her comments offensive, and, following an investigation, her visiting fellowship was not renewed. The Claimant complained that she was discriminated against because of her belief. There was a preliminary hearing to determine whether the Claimant’s belief was a philosophical belief within the meaning of s.10 of the Equality Act 2010 (EqA). The Tribunal concluded that the belief did not meet the test set out in Grainger plc v Nicholson that, in order to be 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.

The Tribunal held that the belief, being” absolutist in nature” and whereby the Claimant would “refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment”, was one that was “not worthy of respect in a democratic society”. Accordingly, the Tribunal concluded that the belief did not satisfy the fifth criterion in Grainger.

Allowing the appeal, the EAT held that the Tribunal had erred in its application of Grainger. A philosophical belief would only be excluded for failing to satisfy Grainger V if it was the kind of belief the expression of which would be akin to Nazism or totalitarianism and thereby liable to be excluded from the protection of rights under Articles 9 and 10 of the European Convention of Human Rights  ECHR)) by virtue of Article 17 . The Claimant’s gender-critical beliefs, which were widely shared (including amongst respected academics and some transgender people), which are consistent with the law on sex and gender, and which did not seek to destroy the rights of trans persons, clearly did not fall into that category. The Claimant’s belief, whilst offensive to some, and notwithstanding its potential to result in the harassment of trans persons in some circumstances, fell within the protection under Article 9(1), ECHR and therefore within s.10, EqA.

In order to qualify for protection, a belief need only satisfy some ‘very modest threshold requirements’ and the bar should not be set too high. It is not for the court to enquire into the validity of a belief and, subject to those minimum requirements, the state should remain neutral as between competing beliefs, refraining from expressing any judgment as to whether one belief is more acceptable than another, and ensuring that opposing groups tolerate one another. Beliefs that are offensive, shocking, or even disturbing to others would not be excluded from protection; however, the manifestation of such belief may justifiably be restricted.

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. This does not mean that people with gender critical views can ‘indiscriminately’ or ‘gratuitously’ refuse to use a trans colleague’s preferred pronouns. To do so may constitute unlawful harassment of that person. However, expressing gender critical views, including referring to a trans person’s biological sex, will not necessarily constitute harassment, and whether it does to in any given situation is a highly fact-sensitive question.

Finally, in a concluding ‘Note on Procedure’, the EAT emphasised that, since the Grainger criteria constitute only modest threshold criteria which should not involve the Tribunal in a detailed inquiry into a belief’s validity – and now that it has been clarified that Grainger V is apt only to exclude the most extreme forms of belief akin to Nazism or totalitarianism – any preliminary hearing on whether a belief falls within EqA s10, should not ordinarily take up more than a day of the Tribunal’s time. It will only be in ‘very rare cases’ that a hearing of several days’ length might be required and, in such cases, it may be better to consider the issue alongside the substantive liability issues. In most cases, the real issue will be whether there was discrimination because of the belief in question.

Acknowledging that this is an issue that has generated strong feeling on both sides, the EAT did stress that:

  • This judgment does not mean that the EAT has expressed any view on the merits of either side of the transgender debate;
  • This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of EqA will be for a tribunal to determine in a given case;
  • This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA. They do. Although the protected characteristic of gender reassignment under s.7, EqA would be likely to apply only to a proportion of trans persons, there are other protected characteristics that could potentially be relied upon in the face of such conduct;
  • This judgment does not mean that employers and service providers will not be able to provide a safe environment for trans persons. Employers would continue to be liable for acts of harassment and discrimination against trans persons committed in the course of employment.