The Employment Appeal Tribunal (EAT) has held in Forstater v CGD Europe and others that the claimant's gender critical belief was a philosophical belief qualifying for protection under the Equality Act 2010.
The claimant was a visiting fellow of a not-for-profit think tank focussing on international development. She believes that a person's sex is a material reality that should not be conflated with gender or gender identity, that being female is an immutable biological fact, not a feeling or an identity, and that a trans woman is not in reality a woman. She also believes that, while a person can identify as another sex and ask other people to go along with it, and can change their legal sex under the Gender Recognition Act 2004 (GRA) this does not change their actual sex. She engaged in debates on social media about gender identity issues, and made some remarks which some trans people found offensive. Following an investigation her visiting fellowship was not renewed. She brought a claim for discrimination on the grounds of her philosophical belief.
At a preliminary hearing, a tribunal concluded that the claimant's beliefs did not amount to a philosophical belief that qualified for protection as they did not satisfy one of the criterion set out in Grainger plc and others v Nicholson, namely that the belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. The EAT uphold the claimant's appeal and remitted the case to a freshly constituted tribunal to determine whether the claimant had suffered discrimination as a result of her belief.
The EAT noted that freedom of expression is one of the essential foundations of democratic society, which cannot exist without pluralism, tolerance and broadmindedness. It concluded that it is not for the court to inquire into the validity of a belief, and a belief only needs to satisfy a very modest threshold to be protected under Article 9 (which protects the right to freedom of thought, conscience and belief).
In coming to its conclusion the EAT looked at whether a person falls outside the scope of protection under Articles 9 and 10 (freedom of expression) by virtue of Article 17 (which prohibits the abuse of Convention rights to engage in any activity aimed at the destruction of the rights and freedoms of others). Case law has held that Article 17 only excludes the "gravest forms of hate speech" which incite violence or hatred aimed at destroying the Convention rights and freedoms of others. The EAT held that only beliefs which are caught by Article 17, such as pursuing totalitarianism, advocating Nazism, or espousing violence and hatred, would fail to qualify under the Grainger criterion and be found to be not worthy of respect in a democratic society. It concluded that beliefs which are offensive, shocking or even disturbing to others, including those which would fall into the less serious category of hate speech, can still be protected.
The claimant's gender-critical beliefs, which were widely shared in society (including by some trans persons), and which did not seek to destroy the rights of trans persons, did not fall into the category of beliefs excluded from protection by Article 17.
Take note: In reaching its decision in Forstater, the EAT made it clear that it was not expressing any view of the merits of either side of the transgender debate. The decision does not mean that trans persons do not have protections against discrimination and harassment, nor that those with gender-critical beliefs can "misgender" trans persons with impunity. Employers will still be liable for any acts of harassment and discrimination against trans persons committed in the course of employment.
The EAT's decision makes it clear that all but the most extreme beliefs are "worthy of respect in a democratic society". This should mean that less time will be spent determining whether a belief is protected and more time on the question of whether discrimination has occurred.
To hear a discussion of Forstater and the types of belief that are likely to be protected under the Equality Act 2010 please tune in to our Trowers Tuesday on 20 July, Including the offensive, when we'll be joined by Chris Milsom, a barrister from Cloisters Chambers.
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