Fri 18 Jun 2021

Gender critical beliefs protected under Equality Act 2010

The EAT holds that belief that sex is immutable is a protected philosophical belief

The case of Maya Forstater, a consultant who worked for CGD Europe, revolves around her "gender critical" opinions.  She believed that sex was a material reality that should not be confused with gender or gender identity, and she entered into debates on social media, including Twitter, about this issue.  Some of the comments she made where offensive to transgender people and some of her colleagues at CGD Europe complained about them.  After an investigation the company chose not to renew her consultancy agreement.

Ms Forstater made claims to the employment tribunal, including one that her gender-critical views constituted a protected philosophical belief under the Equality Act 2010.  The starting point for whether a philosophical belief is likely to have protection under the Equality Act 2010 is the case of Grainger plc and others v Nicholson in which the EAT set out a number of requirements which a belief has to meet in order to gain protection.  One of those requirements is that the belief must be worthy of respect in democratic society and not incompatible with human dignity or the fundamental rights of others.  The employment tribunal found that Ms Forstater's beliefs met all the other requirements to be a protected belief except this one.   They held her beliefs were absolutist in nature and that she would refer to a person by the sex she considered appropriate even if it violated the dignity of that person, or created an intimidating, hostile, degrading or offensive environment.  The tribunal judge found that Ms Forstater was not entitled to ignore the rights of a transgender person and the "enormous pain that can be caused by misgendering".  Her claim therefore failed.

However, Ms Forstater appealed and in Forstater v CGD Europe & ors, Index On Censorship and EHRC intervening the EAT found the tribunal had misapplied the requirement of being worthy of respect in democratic society.  It held that her gender critical views were widely shared and did not seek to destroy the rights of trans persons.  Holding and expressing gender critical beliefs does not, held the EAT, inherently interfere with the rights of trans people, even though some may find such beliefs offensive or distressing.  The types of beliefs that would not meet the requirement of respect in a democratic society were "akin to totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms" and would likely be excluded from protection under Articles 9 (freedom of thought, conscience and religion) and 10 (freedom of expression) of the European Convention on Human Rights.  Ms Forstater's belief "clearly did not fall into that category". 

The EAT went on to clarify that this judgment does not mean those with gender-critical beliefs can "misgender" trans persons with impunity, nor does it mean that trans persons do not have the protections against discrimination or harassment conferred by the Equality Act 2010, or that employers and service providers will not be able to provide a safe place for trans persons.  Those with gender-critical beliefs continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else, and employers will continue (subject to the statutory defence) to be liable for acts of harassment and discrimination against trans persons committed in the course of employment.

The case will now return to the employment tribunal to decide whether CDG Europe discriminated against Ms Forstater by not renewing her consultancy agreement after complaints were made about her tweets.

This case is a reminder for employers that just because certain groups with protected characteristics may be offended by the views of an employee, those views may still be protected as a philosophical belief.  That means any disciplinary action taken against the employee could be discriminatory if the reason for the action was the belief itself.  An employer would have to show that the reason for the treatment was not the belief itself but the way in which the employee manifested that belief.  Equally, employers should also be aware that an employee with such beliefs could be protected from harassment by co-workers should they, for example, refer to him or her as a bigot or similar for expressing those beliefs.  Whether that is the case in any given situation will be entirely dependent on the facts in each case.   

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