In a recent case, the Employment Appeal Tribunal considered whether the belief that someone’s sex is biologically immutable can be protected as a philosophical belief under the Equality Act.
Ms Forstater was a researcher who worked for the think tank CGD. She claimed that her contract was not renewed because of views she expressed on social media regarding transgender persons. Ms Forstater believed that someone’s sex is a material reality which should not be conflated with gender or gender identity. She considered sex to be a biological status observed at birth and that it was not possible to change it.
Are Ms Forstater’s beliefs capable of being protected as philosophical beliefs?
Forstater v CGD Europe and ors
Ms Forstater engaged in debates and expressed critical views regarding transgender persons and proposed changes to the Gender Recognition Act on social media. Under the Act, a person can obtain a Gender Recognition Certificate where they have gender dysphoria, have lived as that gender for 2 or more years and plan to do so until death. Proposed changes to the Act would allow people to self-identify their gender. Ms Forstater believes that sex and gender are different things and that sex ‘trumps’ gender. She does not agree that people can change their sex as this is biologically determined at conception. Consequently, she believes that she could not be bound to refer to a transgender person by the pronoun appropriate to their acquired gender. Colleagues of Ms Forstater complained to CGD that they found her comments offensive. After an investigation, Ms Forstater’s fellowship contract was not renewed.
Ms Forstater brought claims in the Tribunal for discrimination, relying on the protected characteristic of religion or belief.
At a Preliminary Hearing, the Tribunal concluded that Ms Forstater’s beliefs did not amount to a protected characteristic. It considered the classic criteria that a belief must meet to be protected:
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.
It decided that Ms Forstater’s views satisfied all but the fifth criterion because Ms Forstater would ‘refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment’ and this was ‘not worthy of respect in a democratic society’.
The EAT concluded that the Tribunal had been wrong in its application that Ms Forstater’s belief was ‘not worthy of respect in a democratic society’, confirming that a philosophical belief would only be excluded from protection if it was ‘the kind of belief the expression of which would be akin to Nazism or totalitarianism’. It commented that Ms Forstater’s beliefs are widely shared in society and whilst gender critical, do not seek to destroy the rights of trans persons and so do not fall into that category. It also recognised that Ms Forstater’s belief that sex is binary is consistent with the law.
Her belief is therefore capable of protection. The EAT ordered that a different ET consider whether the treatment meted out to her was discriminatory.
This decision, as with previous decisions, recognises that competing philosophical beliefs can be equally worth of protection as philosophical beliefs under the Equality Act 2010.
Of course, it doesn’t mean that those with similar gender-critical beliefs can ‘misgender’ trans persons without consequence. Trans persons will still be protected against discrimination and harassment and employers will continue to be liable for acts of discrimination and harassment in that respect.
Employers need to be extremely mindful of the conflict that can arise with opposing philosophical beliefs, training staff in what is and what isn’t acceptable.
If you have any queries about equality, diversity and discrimination training, we offer bespoke in-house training dovetailed to your business. Please get in touch with one of our team for more details on 01228 552600 or 01524 548494.