Employment Law Cases
Philosophical belief discrimination and transgender issues
‘Gender-critical’ beliefs, including a belief that biological sex is real, important, immutable and not to be conflated with gender identity, are protected under the Equality Act and the European Convention on Human Rights.
To qualify as a ‘philosophical belief’ under s. 10 of the Equality Act 2010, the belief must satisfy the five criteria set out in Grainger v Nicholson case:
- 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, not be incompatible with human dignity and not conflict with the fundamental rights of others
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.
The tribunal, applying the Grainger criteria, 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. Ms Forstater appealed.
The appeal was allowed.
Section 10 of the Equality Act must be read and understood comfortably with art. 9 and 10 of the European Convention on Human Rights (ECHR) under which high importance is attached to diversity or pluralism of thought, belief and expression and their foundational role in a liberal democracy. 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 opposing groups tolerate one another.
The tribunal had erred in its application of the Grainger criteria, specifically point 5. A philosophical belief would only be excluded for failing to satisfy point 5 if it were 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 art. 9 (freedom of thought, conscience and religion) and art. 10 (freedom of expression) of the ECHR. Beliefs that are offensive, shocking or even disturbing to others, even those which constitute less grave forms of hate speech, would not be excluded from ECHR protection (although their manifestation may, depending on the circumstances, be justifiably restricted).
Ms Forstater’s beliefs might well be considered offensive and abhorrent to some and might in some circumstances cause offence to trans persons, but the potential for offence cannot be a reason to exclude a belief from protection altogether. Moreover, her beliefs are widely shared, included by respected academics – and a widely-shared belief demands particular care before it can be condemned as being not worthy of respect in a democratic society. In addition, Ms Forstater’s belief that sex is immutable and binary is consistent with the law, a fact recognised by the tribunal.
Her belief, notwithstanding its potential to result in the harassment of trans persons in some circumstances, fell within the protection under art. 9(1) of the ECHR and therefore within s. 10 of the Equality Act 2010.
Following the EAT decision, Ms Forstater’s case returned to the tribunal to determine the substantive issue - whether she had been unlawfully discriminated against by CGD because of her protected belief. It concluded that she was the subject of unlawful direct belief discrimination on the basis of her gender-critical beliefs. The tribunal considered whether her tweets were a manifestation of her belief to which objection could reasonably be taken or an inappropriate manner of manifesting her belief. Having considered several of her tweets, they found they were not objectively unreasonable. It held therefore that she had been discriminated against because of her beliefs in that she had not had her Visiting Fellowship renewed, nor been offered an employment contract. At a subsequent remedy hearing, Ms Forstater was awarded over £105,000 in compensation which included sums for aggravated damages for the oppressive and high-handed comments CGD had made during the course of the case.
Among other things, the tribunal made clear that:
- to express gender-critical beliefs to the effect that transwomen are not women, or that a trans person’s internal feelings about their gender identity has no basis in material reality, is not inherently unreasonable or inappropriate – even if some people are offended by such statements
- when engaging in debate on a matter of public interest, such as sex and gender, it is also not objectively unreasonable to express support for material that uses the tools of political campaigning or advertising to enhance its message, or to engage on social media in ways that (provided it is not taken too far) involve mocking or satirising the opposing view – such is ‘common currency of debate’ in a democratic society
The EAT emphasised what its judgment does not mean. Specifically:
- It does not mean that it has expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing.
- It does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. Ms Forstater, 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 amounts to harassment or discrimination within the meaning of Equality Act will be for a tribunal to determine in a given case.
- It does not mean that trans persons do not have the protections against discrimination and harassment conferred by the Equality Act. They do. Although the protected characteristic of gender reassignment (under s. 7 of the Act) 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.
- It 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 (subject to any permitted defence) for acts of harassment and discrimination against trans persons committed in the course of employment.