Is gender a protected belief under the Equality Act?
In the recent case of Forstater v CGD Europe (CGDE) the Employment Appeal Tribunal (EAT) has confirmed that gender critical belief is a protected characteristic under the Equality Act 2010 (EqA 2010).
Ms Forstater was a consultant working for CGDE. She believed that a person's sex is a material reality that should not be conflated with gender or gender identity. She believed 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 believed 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.
Ms Forstater’s consultancy agreement with CGDE was not renewed following an investigation to comments on the subject of gender that she had made on social media. Her colleagues had complained that they had found her comments offensive and an investigation concluded the non- renewal of her consultancy.
She bought claims in the employment tribunal for discrimination on the basis that her gender beliefs were a protected "philosophical belief" under section 10 of the EqA 2010 and that the non-renewal of her agreement amounted to discrimination.
At a preliminary hearing, an employment tribunal concluded that Ms Forstater's beliefs did not amount to a philosophical belief as they did not satisfy the fifth criterion in the previous case of Grainger (which set out the criteria which had to be met for protection under the EqA 2010). The so-called Grainger V criterion requires that 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. It accepted that all the other Grainger criteria were met. The employment tribunal noted that Mrs Forstater’s view of sex was "absolutist" in nature and was incompatible with human dignity and the fundamental rights of others. It was a core component of her belief that she would refer to a person by the sex she considered appropriate even if it violated their dignity or created an intimidating, hostile, degrading, humiliating or offensive environment.
On appeal, the EAT overturned the employment tribunal’s decision. In doing so, the EAT made a number of important observations -
- Freedom of expression is one of the essential foundations of democratic society, which cannot exist without pluralism, tolerance and broadmindedness.
- It is not for the court to inquire into the validity of a belief. The freedom to hold whatever belief one likes goes hand-in-hand with the State remaining neutral as between competing beliefs and ensuring that groups opposed to one another tolerate each other.
- As to whether a belief is worthy of respect in a democratic society, only those beliefs that are an affront to European Convention on Human Rights principles, in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, would be found to be not worthy of respect in a democratic society. 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.
- Ms Forstater's gender-critical beliefs, which were widely shared in society (including by some trans persons and by a number of respected academics), and which did not seek to destroy the rights of trans persons, clearly did not fall into the category of beliefs excluded from protection. The EAT noted that the popularity of a belief does not insulate it from being one that undermines the rights of others. However, a widely shared belief demands particular care before it can be condemned as being not worthy of respect in a democratic society.
This decision will have a major impact on the debate over the rights of those with gender critical views and furthers the definition of a philosophical belief. The reasoning behind the EAT decision came from the freedom of expression being the centre point of democracy and the observation that, without this, we are in danger of moving towards a more totalitarian state. In addition, freedom of belief allows an individual to have the freedom to believe whatever they want even if this is shocking and offensive to other people. This judgement clarifies that it is only the most extreme beliefs that will not be protected under the EqA 2010.
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For more information on this update, or any Employment matters please contact Lauren Cullen.