‘Gender-critical’ beliefs, including a belief that biological sex is dimorphic, important, immutable and distinct from gender identity, are protected under the Equality Act and the European Convention on Human Rights following the decision of the Employment Appeal Tribunal in 2021 in a case bought by Maya Forstater against CGD Europe.
To qualify as a ‘philosophical belief’ under s. 10 of the Equality Act 2010, the belief must satisfy the five criteria set out in Grainger v Nicholson case:
- 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
Background
Ms Forstater worked for public policy think tank CGD Europe under a consultancy agreement. She had become interested in the gender recognition issues, specifically the law allowing people to self-identify their gender. She was also active on social media. Her belief is that sex is biologically immutable, i.e. there are two genders: male and female, and that there is no possibility of any sex in between the two (or that it is possible to ever change sex).
Ms Forstater does not accept in any circumstances that a trans woman is a woman or that a trans man is a man.
Some of CGD’s staff complained about Ms Forstater’s comments on this issue on social media. Following the end of her contract in 2018, CGD refused to engage her further. She claimed that this refusal to re-engage was because of her gender-critical opinions and was therefore directly discriminatory, i.e. she was refused employment because of a protected characteristic (her philosophical belief).
Before the substantive hearing of her case, which she went on to win (see here), she had to show that the belief she holds was protected by the Equality Act and this was the issue addressed by the tribunal in a preliminary hearing.
The tribunal, applying the Grainger criteria, held that Ms Forstater’s belief met the first four of them but did not meet the last. Her belief, specifically its absolutist nature, was not worthy of respect in a democratic society because it was incompatible with human dignity and conflicted with the fundamental rights of others. Accordingly, her belief could not be a protected belief under the Equality Act. Ms Forstater appealed.
EAT decision
Ms Forstater’s appeal was allowed.
Section 10 of the Equality Act must be read and understood comfortably with art. 9 and 10 of the European Convention on Human Rights (ECHR) under which high importance is attached to diversity or pluralism of thought, belief and expression and their foundational role in a liberal democracy.
To qualify for protection, a belief need only satisfy some ‘very modest threshold requirements’ and the bar should not be set too high. It is not for the court to enquire into the validity of a belief and, subject to those minimum requirements, the state should remain neutral as between competing beliefs, refraining from expressing any judgment as to whether one belief is more acceptable than another, and ensuring opposing groups tolerate one another.
The tribunal had been mistaken in its application of the Grainger criteria, specifically point 5. A philosophical belief would only be excluded for failing to satisfy point 5 if it were the kind of belief the expression of which would be akin to Nazism or totalitarianism and thereby liable to be excluded from the protection of rights under art. 9 (freedom of thought, conscience and religion) and art. 10 (freedom of expression) of the ECHR.
Beliefs that are offensive, shocking or even disturbing to others, even those which constitute less serious forms of hate speech, could not be excluded from ECHR protection (although their manifestation may, depending on the circumstances, be justifiably restricted).
Ms Forstater’s beliefs might well be considered offensive and abhorrent to some and might in some circumstances cause offence to trans persons, but the potential for offence cannot be a reason to exclude a belief from protection altogether. Her beliefs are widely shared, including by respected academics – and a widely-shared belief demands particular care before it can be condemned as being not worthy of respect in a democratic society.
Furthermore, Ms Forstater’s belief that sex is immutable, and binary is consistent with the law, a fact recognised by the tribunal.
Her belief, notwithstanding its potential to result in the harassment or discrimination of trans persons in some circumstances, fell within the protection under art. 9(1) of the ECHR and therefore within s. 10 of the Equality Act 2010.
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