Philosophical belief discrimination and transgender issues

Forstater v CGD Europe

A refusal to accept that trans women are women is not a protected ‘philosophical belief’ under the Equality Act.

Background

Ms Forstater worked as a researcher and writer for a public policy think tank CGD under a consultancy agreement. She had become interested in the gender recognition issues, specifically the law allowing people to self-identify their gender. She was also active on social media. She believes that sex is biologically immutable, i.e. there are only two genders, male and female, and that there is no possibility of any sex in between the two (or that it is possible ever to change sex). She does not accept in any circumstances that a trans woman is, in reality, a woman or that a trans man is a man. Some of CGD’s staff raised concerns that about Ms Forstater’s comments on this issue on social media. Following the end of her contract in 2018, CGD refused to engage her further. She claims that this refusal to re-engage was because of her gender-critical opinions and was therefore directly discriminatory, i.e. she was refused employment because of a protected characteristic. Before any substantive hearing of her case, she had to show that the belief she holds is protected by the Equality Act and this was the issue addressed by the tribunal in a preliminary hearing.

Tribunal decision

To qualify as a ‘philosophical belief’ the belief must satisfy the five criteria set out in Grainger v Nicholson:

  1. the belief must be genuinely held
  2. it must be a belief and not an opinion or viewpoint based on the present state of information available
  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, and
  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

The tribunal applied these criteria and held that Ms Forstater’s belief met the first four of them but did not meet the last. Her belief, specifically its absolutist nature, was not worthy of respect in a democratic society because it was incompatible with human dignity and conflicted with the fundamental rights of others. Accordingly, her belief could not be a protected belief under the Equality Act.

Link to judgment: https://www.bailii.org/uk/cases/UKET/2019/2200909_2019.html

Comment

While this is only a tribunal decision and, as such, sets no precedent (and may be appealed), it does highlight the limits of what amounts to a ‘philosophical belief’ and strikes a balance between ‘freedom of speech’ on one hand and views which others may find offensive and incompatible with human right dignity, on the other. The Employment Judge noted ‘Even paying due regard to the qualified right to freedom of expression, people cannot expect to be protected if their core belief involves violating others dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for them’.