Wed 16 Jun 2021

The EAT Has Decided That a Belief as to the Immutability of Sex is Protected under the Equality Act 2010

Who is Maya Forstater?

Maya Forstater attracted a considerable amount of media attention in 2018 when she took to Twitter and posted a number of tweets relating to her beliefs about sex. She considers that statements such as “woman means adult human female” or “trans women are male” are statements of neutral fact and are not expressions of antipathy towards trans people or “transphobic”. 

She described statements such as “women are adult human females” and “trans-women are male” as basic biological truths.

She worked at the Centre for Global Development (CGD), a think-tank that campaigns against poverty and inequality, with which she had a consultancy contract. After concerns were raised about her  tweets about her views, she found she was not offered further consultancy work and a visiting fellowship was not renewed.  

Her tweets about her treatment went viral on social media. Her supporters used the hashtag #IStandWithMaya, and a perhaps unlikely sharer of this hashtag was J.K Rowling, who then experienced a backlash of her own for doing so.

Background to the Appeal

Using the crowdfunding to pay for her legal fees, Ms Forstater brought a claim in the Employment Tribunal against CGD for direct discrimination (amongst other things) for having a ‘protected characteristic” under the Equality Act 2010 (EqA). 

One of nine protected characteristics under EqA is ‘religion or belief.’  Section 10 of the EqA defines a belief as ‘any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.’  Ms Forstater’s gender critical beliefs had to qualify as being a ‘protected’ characteristic before she was able to pursue a claim for direct discrimination.

The Employment Tribunal (ET) applied what is known as the Grainger Test, established in the case of Grainger plc and others v Nicholson [2010] IRLR 4 (EAT), which is a set of criteria to be satisfied in determining whether a particular philosophical belief is to be ‘protected.’  For a philosophical belief to be ‘protected’ it must:

  • be genuinely held;
  • be a belief, not an opinion or viewpoint based on the present state of information available;
  • be a belief as to a weighty and substantial aspect of human life and behaviour;
  • attain a certain level of cogency, seriousness, cohesion and importance; and
  • be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

In applying the Grainger Test, the ET found that Ms Forstater’s belief satisfied the first four limbs of the criteria, however, it failed at the fifth criterion. It found that her belief was absolutist and was not worthy of respect in democratic society. 

Unsurprisingly, Ms Forstater went on to appeal the decision, which was heard by the Employment Appeal over two days on the 27th and 28th of April 2021. It was the fifth Grainger Test criterion that the belief must be “worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others”, that was the focus of the appeal.

Appeal Decision

On a decision handed down at 10:30am on the 10th of June 2021, the Employment Appeal Tribunal (EAT) overturned the ET’s decision and allowed Ms Forstater’s appeal. 

The EAT held that the Tribunal had erred in its application of the Grainger Test, and stated that a philosophical belief would only be excluded for failing to satisfy the fifth limb if it was akin to Nazism or totalitarianism.  The EAT concluded that Ms Forstater’s gender-critical beliefs were widely shared and did not seek to destroy the rights of trans persons, so did not fall under the rights to be protected under Articles 9 (Freedom of thought, conscience and religion) and 10 (Freedom of expression) of the ECHR.

Interestingly, and in an unusual course of action, the EAT also included in its judgment with several paragraphs in relation to the treatment of trans persons making it very clear that their decision does not mean that those with gender-critical beliefs can misgender trans persons without consequence.  The EAT also echoed that the judgment does not change the fact that anyone with gender-critical views will still be subject to the same laws on discrimination and harassment, and it does not mean that employers and service providers should not be able to provide a safe working environment for trans persons.

The case will now go back to the Tribunal to decide if Ms Forstater was discriminated against.

What does this mean?

This has confirmed gender critical beliefs which otherwise satisfy the Grainger Test are a “protected characteristic” under the EqA. A person who holds such a belief cannot be discriminated against contrary to the EqA. The decision has been much reported on and is unpopular with some members and supporters of the trans and wider LGBTQ+ community.

The judgment also adds to a growing list of philosophical beliefs, from ethical veganism to believing that mediums can communicate with the dead which have been held as being protected philosophical beliefs under the EqA.  We expect that the employment tribunal will see an increase in discrimination claims based on philosophical beliefs.  

With this in mind, a practical lesson for employers is to always keep an open mind about what could amount to a ‘belief’. They should review any policies and procedures to check they are balanced and fair, and do not put employees with certain beliefs at a disadvantage.

How can we help?

If you have any questions about what this judgment means for you or your organisation, please get in touch with our Employment Team.

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