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Philosophical belief discrimination

Is a belief that there are only two biological sexes in humans, and that it is not possible for a human being to change sex, a philosophical belief?

Forstater v CGD Europe & others

Ms Forstater worked for CGD as a consultant from January 2015 until December 2018. Ms Forstater claims that CGD ended the relationship because she expressed ‘gender critical’ opinions that someone’s sex is biologically immutable, whatever their stated gender identity or gender expression. She got into a debate in a personal capacity on her own Twitter account about proposed reforms to the Gender Recognition Act. She communicated her belief that people can only be male or female.

Ms Forstater contended that her views amounted to a philosophical belief, being necessary to support her sense of self, her feminism and political activism.  She also brought claims for direct and indirect sex discrimination, arguing that her view is more likely to be held by a woman than a man, on the basis that she thought the proposed changes to the Act would cause greater privacy issues to women.

Decision

The Tribunal concluded that Ms Forstater’s view is not a philosophical belief worthy of protection under the Equality Act 2010. In her favour, the tribunal found that the belief was genuinely held because it is not merely an opinion and it is based on a substantial aspect of human life and behaviour and could be said to fit in with the ‘modest’ requirements of coherence. However, the tribunal said that, on balance, the belief failed to attain a certain level of cogency, seriousness, cohesion and importance because its absolutist nature is incompatible with human dignity and the fundamental rights of others.

Comment

Transgender and Transsexual people are protected under the Equality Act 2010 on the grounds of gender reassignment and The Gender Recognition Act, which allows transsexuals to obtain a Gender Recognition Certificate to legally change their gender.  Employers should make all workers and employees aware that views expressed about transgender and transsexual people can amount to harassment. Employers should also remember that they can be liable for workers’ and employee’s behaviour.

As we explored in the Ethical Veganism case here, we predict more claimants will argue that other beliefs are capable of protection under the Equality Act 2010. Employers should take the opportunity to update policies and provide training to workers and employees about respecting the views others in a wider context.

If you have any queries in relation to discrimination or any other HR or employment law queries, please contact our employment team on 01228 552600 or 01524 548494.

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