'Gender critical' belief is a protected characteristic

In a case which has attracted a high level of interest due to the difficult and controversial issues in question, the Employment Appeal Tribunal has ruled that a belief that sex cannot be changed is a valid ‘philosophical belief’ under the Equality Act 2010.

Background

To qualify for protection from discrimination, harassment and victimisation under the Equality Act 2010 (‘the Act’), a Claimant must show that they have a ‘protected characteristic’. One of the ‘protected characteristics’ is holding a religious or philosophical belief.

There is no definition of ‘philosophical belief’ in the Act. It was left to Courts and Tribunals to determine the definition – and this has been found to include a wide range of beliefs, from ethical veganism through to a belief in the catastrophic effects of climate change. It also includes no belief at all.

When tackling the question of what amounts to a philosophical belief under the Act, Employment Tribunals will check if the belief satisfies the following five tests, set out in a case called Grainger plc v Nicholson (EAT, 2010).

1. The belief must be genuinely held.
2. It must be more than a mere ‘opinion’ or viewpoint.
3. It must be a belief as to a weighty and substantial aspect of human life and behaviour.
4. It must attain a certain level of cogency, seriousness, cohesion and importance.
5. It must be worthy of respect in a democratic society, not be incompatible with human dignity, and not conflict with the fundamental rights of others.

Facts

The Claimant, Ms Forstater, was engaged as a consultant for a think-tank called CGD Europe.

In a series of tweets, Ms Forstater expressed ‘gender-critical’ views, i.e. that biological sex is immutable and cannot be changed; and it should not be conflated with gender or gender identity, which can be changed.

Some of Ms Forstater’s colleagues at work complained that they found her remarks on social media offensive.  Following an investigation, Ms Forstater’s contract with CGD Europe was not renewed.

Ms Forstater lodged a claim with an Employment Tribunal that she was discriminated against and victimised because of her gender-critical beliefs.

Before her claim could proceed to a full hearing, an Employment Tribunal had to decide whether Ms Forstater’s belief was a philosophical belief under the Equality Act 2010.

In Northern Ireland, the Equality Act 2010 does not apply and instead protection from discrimination, harassment and victimisation on the grounds of philosophical belief is provided for by the Fair Employment and Treatment (Northern Ireland) Order 1998. Whilst the legislation differs, the principles and protections provided for are largely similar and this judgment is likely to have persuasive authority in Northern Ireland

The Employment Tribunal said that Ms Forstater’s belief was not a protected philosophical belief. It said that Ms Forstater’s views failed the fifth ‘Grainger test’ (set out above): she was ‘absolutist’ in her views and would refer to people by the sex she considered appropriate, even if it was offensive to them. This, the Employment Tribunal held, meant her belief was not worthy of respect in a democratic society.

Ms Forstater appealed to the Employment Appeal Tribunal (EAT). The Index for Censorship and the Equality and Human Rights Commission intervened in support of Ms Forstater’s appeal.

Decision

In Forstater v CGD Europe and others, the EAT upheld Ms Forstater’s appeal and said that having a gender critical belief is a philosophical belief under the Act.

In reaching its decision, the EAT made the following points.

• Beliefs will only be excluded under the fifth test in Grainger (above) if they are so extreme that they are akin to Nazism or totalitarianism.

• Ms Forstater’s beliefs were widely shared and did not seek to undermine the rights of trans people, so they did not fall into the category of being ‘unworthy of respect in a democratic society’.
• Although some people found Ms Forstater’s beliefs offensive, that did not preclude those beliefs from protection.

It will now be for Ms Forstater to take her claim back to an Employment Tribunal to decide, on the merits, whether she was discriminated against, or victimised, because of her beliefs.

In Northern Ireland, the Equality Act 2010 does not apply and instead protection from discrimination, harassment and victimisation on the grounds of philosophical belief is provided for by the Fair Employment and Treatment (Northern Ireland) Order 1998. Whilst the legislation differs, the principles and protections provided for are largely similar and this judgment is likely to have persuasive authority in Northern Ireland

Comment

This was a keenly awaited decision on a hotly debated topic. In its judgment, the EAT very clearly stated that it did not express any view on either side of the transgender debate; and the decision does not mean that those with gender-critical beliefs can ‘misgender’ trans people with impunity.

Applying that in the employee relations context, although workers with gender-critical beliefs are protected, that protection sits equally alongside protection for trans people. Employers will remain liable for discrimination and / or conduct which creates an intimidating, hostile or degrading environment during the course of employment, for both trans people and those with gender critical beliefs. Employers must remember that those with beliefs that some may find offensive might be protected; but the protection will be limited.   

This case also confirms the wider principle that the bar is set low for a belief to cross the threshold of being ‘worthy of respect in a democratic society’. So, if there is uncertainty, employers would be well advised to assume that a belief is covered, and shift their focus to the substantive merits of any claim or complaint.

The full judgment is available here.

Contributor: Sarah Maddock