Gender critical beliefs protected by the Equality Act 2010

The Employment Appeal Tribunal has found that a belief that sex is biologically immutable and that there are only two sexes (male and female) is a philosophical belief which is worthy of protection under section 10 of the Equality Act 2010.

Forstater v CGD Europe, Centre for Global Development and Ahmed

The Claimant, Maya Forstater, was engaged as a visiting fellow of CGD Europe and carried out paid consultancy work on specific projects.

The Claimant holds the belief that biological sex is real, important, immutable and not to be conflated with gender identity. The Claimant believed, amongst other things, that ‘woman means adult human female’ and ‘trans women are male’ are true statements of neutral fact.

In 2018 the Claimant made a series of postings on her personal Twitter account expressing these views in response to the Government’s consultation on proposed amendments to the Gender Recognition Act 2004 (‘GRA’).

These tweets were brought to the attention of the Respondent who considered the tweets were ‘transphobic’, and ‘exclusionary or offensive’. An investigation took place and the Claimant’s fellowship was not renewed. The Claimant brought claims in the Employment Tribunal for (amongst other things) direct discrimination because of her philosophical belief and harassment related to that belief.

In order to qualify as a ‘philosophical belief’ under the Equality Act 2010, the belief must satisfy the five criteria set out in previous case law (Grainger v Nicholson), that being:

• the belief must be genuinely held
• it must be a belief and not an opinion or viewpoint based on the present state of information available
• it must be a belief as to a weighty and substantial aspect of human life and behaviour
• it must attain a certain level of cogency, seriousness, cohesion and importance, and
• 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

The Tribunal held that Ms Forstater’s belief satisfied the first four elements of the test, but not the last. It was considered that her beliefs were absolutist in nature, and were not worthy of respect in a democratic society because they were incompatible with human dignity and conflicted with the fundamental rights of others. The direct discrimination claim therefore failed.

Ms Forstater appealed to the EAT.

The Employment Appeal Tribunal’s decision

The EAT upheld the appeal and found that the tribunal had erred in its application of point 5 of the Grainger criteria.

Whilst it was accepted that Ms Forstater’s belief may be considered offensive and abhorrent to some, the EAT considered that it cannot be that the mere potential for offence is a justifiable reason to exclude a belief from protection altogether.

The EAT held that a philosophical belief would only be considered not worthy of respect in a demographic society if it were akin to Nazism, totalitarianism, or espousing violence and hatred in the gravest of forms.

The Tribunal considered the fact that Mrs Forstater’s beliefs were widely shared, including by respected academics – and therefore the Tribunal should not lightly condemn the view as being not worthy of respect in a democratic society.

Her belief, notwithstanding its potential to result in the harassment of trans persons in some circumstances, attracted protection under the Equality Act 2010. This matter will now proceed to a full liability hearing.