Gender critical beliefs
29 June 2021
The Employment Appeal Tribunal (EAT) has considered whether gender critical beliefs (including the belief that biological sex should not be conflated with gender identity) are protected under the Equality Act 2010.
Forstater v CGD Europe and others, UKEAT/0105/20
The claimant in this case worked as a consultant for the respondent. She believes that a person’s biological sex is a material reality that should not be conflated with gender or gender identity. While an individual may choose to identify as another sex, and change their legal sex under the Gender Recognition Act 2004, her belief is that this does not change their actual sex.
Following remarks the claimant made on social media in relation to these beliefs and her opposition to proposed amendments to the Gender Recognition Act 2004, some of her colleagues complained that her comments were transphobic and offensive. After an investigation by the respondent, the claimant’s contract was not renewed.
The claimant brought a claim on the basis that her gender-critical beliefs amounted to a ‘philosophical belief’ that was protected under the Equality Act 2010, and that she had been discriminated against for holding those beliefs because her contract was not renewed. An employment tribunal decided at a preliminary hearing that the claimant’s beliefs did not amount to a philosophical belief that qualified for protection under the Equality Act 2010. This was on the basis that her belief did not fulfil the necessary criteria for protection: being worthy of respect in a demographic society; not incompatible with human dignity, and not conflicting with the fundamental rights of others.
The claimant appealed to the EAT.
The EAT upheld the claimant’s appeal and accepted that her belief was a protected philosophical belief under the Equality Act 2010.
Adopting the approach and principles taken from case law on the European Convention on Human Rights (ECHR), the EAT confirmed that a philosophical belief will only be excluded from protection under the Equality Act 2010 if it is the kind of belief that would be considered an affront to ECHR principles, akin to Nazism or totalitarianism or espousing violence and hatred in the gravest of forms and not worthy of respect in a democratic society.
The EAT considered that the claimant’s gender critical beliefs, which are widely shared in society and which did not seek to destroy the rights of trans persons, do not fall within the category of beliefs excluded from protected. Although the beliefs might be offensive to some, and may have the potential to result in the harassment of trans people, they fell within the protection of the Act.
In addition, it was not for the tribunal to assess the merits and validity of the claimant’s belief; this is not relevant in determining whether a belief qualifies for protection. In the EAT’s view, the tribunal was making a value judgement based on its own view about the legitimacy of the belief and had failed to remain neutral.
A different employment tribunal will now proceed to consider whether the claimant had suffered discrimination related to her belief.
This decision clarifies that all but the most extreme beliefs will be considered worthy of respect and are therefore likely to be protected under the Equality Act 2010. The EAT suggested that less time and effort should be spent by tribunals in analysing whether a belief is protected, instead focussing on the key question of whether there has been any discrimination.
The EAT was very clear in the judgment that its decision in this case should not be viewed as giving a green light to those with gender critical beliefs to ‘misgender’ trans people, and it does not mean that trans persons themselves do not have protections against discrimination and harassment. Employers can still be held liable for acts of harassment and discrimination against trans people in the workplace, unless they can show that they have taken all reasonable steps to prevent it.
These articles are from the June 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at June 2021.