Sophie Hay
Posted on 29 Jun 2021

EAT rules gender-critical belief was protected as a "philosophical belief" under EqA 2010

In Forstater v CGD Europe and others UKEAT/0105/20, the Employment Appeal Tribunal (EAT) ruled that the Claimant, who had her contract terminated because of tweets expressing her controversial views on transgenderism, was entitled to express those views without discrimination, as they constituted a philosophical belief under the Equality Act 2010 (EqA).

Background

Religion or philosophical belief is a protected characteristic under Section 4 of the EqA. To qualify as a ‘philosophical belief’ under s. 10 of the EqA, the belief must satisfy the five criteria set out in Grainger v Nicholson [2010] IRLR 4:

  1. The belief must be genuinely held.
  2. It must be a belief, 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.
  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

Facts

The Claimant, Ms Forstater, worked as a researcher and writer, and held a contract as a visiting fellow with CGD, an international development and public policy think tank. The Claimant believes that sex is biologically unchangeable, i.e. there are only two genders, male and female. She does not accept that a trans woman is, in reality, a woman or that a trans man is a man. She believes that, whilst a person can identify as another sex and ask others to treat them as such, and can change their legal sex under the Gender Recognition Act 2004 (GRA), this does not change their actual, biological sex.

Ms Forstater engaged in debates on Twitter about gender identity issues and published several tweets on the topic. Some of her colleagues complained about Ms Forstater's comments, stating that they found them offensive. An investigation ensued, following which the Claimant's contract with CGD was not renewed.

Ms Forstater brought a claim in the Employment Tribunal (ET), claiming that her beliefs constituted "philosophical beliefs" under s.10 of the EqA and the non-renewal of her contract due her expression of these beliefs amounted to discrimination under the Act.

Ruling

ET Decision

At a Preliminary Hearing, the ET ruled that the Claimant's beliefs did not amount to philosophical beliefs qualifying for protection under the EqA as, whilst they fulfilled the first four criteria in Grainger (set out above), they did not satisfy the fifth criterion – to be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

It was held that her view of sex was "absolutist" in nature and was incompatible with human dignity and the fundamental rights of others. The Claimant's belief meant 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.

Ms Forstater appealed.

EAT Decision

The appeal was allowed – the EAT decided that Ms Forstater's belief was a protected philosophical belief under s.10 EqA.

In determining the correct approach as to whether a belief was "worthy of respect in a democratic society", the EAT noted that s.10 EqA must be read and understood comfortably with Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression) of the European Convention on Human Rights (ECHR), under which high importance is attached to diversity of thought, belief, and freedom of expression.

The EAT ruled that the ET had erred when applying the fifth Grainger criterion. Only the "gravest forms of hate speech" which incite violence or hatred, and are excluded from protection by Article 17 of the ECHR, would fail to satisfy point five of the Grainger criteria. Less serious forms of hate speech, which might include insults, inciting violence or criminal acts will attract the protection of Article 9.

Ms Forstater's gender-critical beliefs which, whilst causing offence to some, did not seek to destroy the rights of trans persons, fell within the protection of Article 9 and, therefore, within s.10 of the EqA.

The case will now be remitted to the Employment Tribunal to determine whether CGD acted unlawfully when it failed to renew Forstater’s contract.

What the ruling DOES NOT mean

Whilst giving its judgement, the EAT made it clear that its judgement did not mean the following:

  • That the EAT had expressed any view on the merits of either side of the transgender debate.
  • That those with gender-critical beliefs can 'misgender' trans persons with immunity – trans persons have protection against discrimination and harassment under the EqA 2010. Whether an individual's conduct amounts to discrimination or harassment will be a matter for the ET to decide.
  • That employers will not be able to provide a safe environment for trans persons. Employers continue to be liable for acts of discrimination and harassment against trans persons in the workplace.

Comment

This is a significant ruling that highlights the importance of freedom of belief, pluralism, tolerance, and expression. Freedom of belief means freedom to hold beliefs that others may find offensive or consider to be wrong. It demonstrates that all but the most extreme beliefs are "worthy of respect in a democratic society" and it is not for the courts to comment on the validity of a belief.

In terms of practical implications, commentators have recommended that employers should review their policies, in particular those on anti-harassment and equal opportunities, to ensure that a positive and harmonious environment is being promoted. Social media policies can be difficult to get right as it is hard to determine how far employers can go in restricting what employees say and do online. A controversial post on social media by an employee should be scrutinised and considered carefully before taking action.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Sophie Hay or Rachael Lloyd to discuss any issues you are facing.