At a glance
- Qualifying philosophical beliefs are protected from discrimination under section 10 of the Equality Act 2010 (EqA).
- In this case the Employment Appeal Tribunal (EAT) held 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 EqA and are therefore protected in the workplace.
- The EAT’s judgement was solely based on whether the Claimant’s gender-critical beliefs constituted a philosophical belief for the purposes of the legislation, rather than expressing any views on merits of either side of the transgender debate.
- This case serves as a reminder that beliefs which some people may find shocking or offensive may be worthy of protection under the EqA.
Background
Ms Forstater engaged in debates on social media about gender identity issues and in doing so voiced her beliefs that whilst a person can identify as another sex, this does not actually change their biological sex. Some of her colleagues complained that they found her comments offensive and transphobic, and following an investigation Ms Forstater’s Visiting Fellowship at CGD Europe was not renewed. Ms Forstater brought a claim alleging direct discrimination and harassment on the basis that she had expressed ‘gender-critical’ beliefs which were worthy of protection under the EqA.
As a preliminary issue, the Employment Tribunal (ET) considered whether Ms Forstater’s comments were manifestations of a philosophical belief which are protected under the EqA. The ET decided that Ms Forstater’s beliefs did not meet the criteria set out in the authority of Grainger plc v Nicholson:
- 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.
At the substantive preliminary hearing, the ET decided that Ms Forstater’s belief met the first four but did not satisfy the fifth criteria of the Grainger test. The ET found that her belief was of an absolutist nature, and she would ‘refer to a person by the sex she considered appropriate even if it violated a person’s dignity’ and as such was not worthy of respect in a democratic society.
Ms Forstater appealed the decision to the EAT.
The appeal
Allowing the appeal, the EAT held that the ET had erred in its application of the test in Grainger. The EAT held that a philosophical belief would only fail to meet the fifth criteria of the Grainger test ‘if it was the kind of belief of which would be akin to Nazism or totalitarianism’ and was so extreme that it destroyed or interfered with the human rights of another. Ms Forstater’s beliefs, which are consistent with the law on sex and gender, clearly did not fall into this category.
The EAT closely considered Article 9 (freedom of thought, conscience and expression), Article 10 (freedom of expression) and Article 17 (prohibition of abusive rights) of the European Convention on Human Rights. The EAT held that a belief need only satisfy some ‘very modest threshold requirements’ in order to be protected under Article 9 and Article 10. The EAT found that Claimant’s belief, whilst offensive to some, did not constitute a belief which was caught by Article 17 and so was not excluded from protection under the European Convention on Human Rights (although, depending on the circumstances, the manifestation of such a belief may be somewhat 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.
The EAT made it clear that in making their decision they were not expressing any views on the merits of such a belief and that trans people cannot be ‘misgendered with impunity. According to the EAT, it is not for a court to evaluate the merits of any belief and they found that in determining whether the view was worthy of respect in a democratic society, the ET had done so.
The EAT stated that two other considerations were significant when determining whether gender-critical attitudes were ‘worthy of respect in a democratic society’. To begin, the fact that gender-critical opinions were frequently disseminated showed that they should be carefully evaluated rather than denounced outright. Second, the assumption that sex is unchanging and binary was, in reality, the current legal situation in the United Kingdom.
Outcome
The case was remitted to the ET and Ms Forstater was ultimately successful in her claim for direct discrimination. The ET found that Ms Forstater had not had her Visiting Fellowship renewed because of her gender-critical beliefs and her direct discrimination claim was therefore well founded. Ms Forstater was awarded over £100,000 in damages at a remedy hearing.
“The Employment Appeal Tribunal held that gender-critical beliefs can be worthy of respect in a democratic society and can be protected under the Equality Act 2010. It may therefore be unlawful to discriminate against an individual for holding those beliefs.”
What does this mean for employers?
This case is a reminder for employers of the complex and challenging issues that can arise when seeking to balance competing rights in the workplace. There is an ongoing interplay between permitting freedom of speech and employees having the right to workplace free from discrimination. This will be undoubtedly difficult for employers to properly balance, but falling on the wrong side of the line could lead to claims for harassment or discrimination from either side of the debate.