In the case of Forstater v CGD Europe and others, the Employment Appeal Tribunal (“EAT”) has ruled that a gender critical belief that sex is immutable, whatever a person’s stated gender identity or gender expression, is a philosophical belief and is protected under the Equality Act 2010 (“the Equality Act”) and the European Convention on Human Rights.
In this particular case, the Claimant was engaged by the Respondent under a consultancy agreement. During the engagement, the Claimant had expressed gender critical beliefs on Twitter and also in the work place. Some staff members had raised concerns about the Claimant’s tweets alleging that they were “transphobic”. Comments made by the Claimant included that “transwomen are men” and the Claimant also gave live evidence that they believed that biological males cannot be women. The Claimant was investigated by the Respondent and following the investigation, the Claimant’s consultancy agreement was not renewed.
Beliefs are protected under section 10 of the Equality Act. In order to qualify as a philosophical belief under section 10 of the Equality Act, that belief must meet the five criteria set out in the case of Grainger plc v Nicholson, which are as follows:-
- 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 claim failed at first instance because the Employment Tribunal found that all but the fifth criteria (that the belief must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental right of others), were met. However, the EAT found that the Employment Tribunal had erred in failing to apply the correct threshold in respect of the fifth criteria and had also failed to remain neutral. The EAT went on to apply the correct threshold which led them to conclude that the Claimant’s gender critical belief met the five criteria set out above and was therefore protected under section 10 of the Equality Act. This then meant that the Claimant would be protected from discrimination and harassment.
The decision by the EAT to allow the appeal now means that the case will be sent back to the Employment Tribunal to consider whether the Respondent discriminated against the Claimant when it did not renew the consultancy agreement. It also means that in some situations, having gender critical beliefs may amount to a protected characteristic under the Equality Act. The EAT made clear that it was not expressing any views on either side of the debate and its decision did not mean that trans persons are not protected against discrimination and harassment or that employers cannot provide a safe environment at work.
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