Gender-critical beliefs capable of protection by Equality Act

A woman who lost her job after tweeting that people cannot change their biological sex has won her appeal against an employment tribunal
Fri 11th Jun 2021

The EAT’s decision in Forstater v CGD Europe and ors, was always going to be controversial. However, for many, the ruling will be seen as an afront to human dignity and a significant step backwards for transgender rights.

The Claimant claimed that her belief – that sex is a material reality and should not be conflated with gender or gender identity (known as a gender-critical belief) – constituted a philosophical belief capable of protection under s10 of the Equality Act (which covers religion or belief).

The original Tribunal concluded that the “absolutist” nature of the Claimant’s beliefs failed to meet the full test for a philosophical belief set down in a previous case, being that the belief must:

  1. be genuinely held;
  2. be a belief and not an opinion or viewpoint based on the present state of information available;
  3. be a belief as to a weighty and substantial aspect of human life and behaviour;
  4. attain a certain level of cogency, seriousness, cohesion and importance; and
  5. 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 accepted that the Claimant’s beliefs met the first four limbs of the test but, crucially, not the last.

The EAT said that the original Tribunal had not applied the test correctly. It stated that a belief would only be excluded from protection under the last limb of the test if it were the kind of belief, the expression of which would be akin to Nazism or totalitarianism, thereby infringing other ECHR Article rights. The EAT also stated that the Claimant’s views on the binary nature of sex were consistent with current UK law.

The case will now go back to the Tribunal to determine if the treatment complained of (non-renewal of the contract etc.) was because of the Claimant’s belief.

The repercussions of this finding could be far reaching. The EAT itself accepted that such a belief had the potential to result in the harassment of trans people in some circumstances. Indeed, the original finding from the Tribunal focussed heavily on the risks associated with individuals holding such a view insisting on “referring to people by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment”. Such conduct would also constitute a breach of many employer’s Equality policies.

For employers, such a decision, creates a potential minefield in seeking to balance competing protected rights. Counsel acting for the Respondent suggested a finding in these terms would create a “two-tier” system between natal women and trans women, with some trans women fearing that it will give licence to people seeking to harass them and that it would fuel transphobia. The EAT did not accept this and stated that “This judgment does not mean that employers and service providers will not be able to provide a safe environment for trans persons.” However, for those managers and HR Teams on the front line, achieving a safe environment will be much harder in the light of a judgment like this.

Similarly, the arguable narrowing of the fifth limb of the test to only the most extreme cases, could have significant implications for other controversial sets of beliefs, including, of most immediate concern, those of anti-vaxxers. The EAT concluded its line of reasoning stating that: “a person is free in a democratic society to hold any belief they wish, subject only to “some modest, objective minimum requirements”.

The EAT was keen to stress that its judgment did not mean that it was expressing any view on the merits of either side of the transgender debate and that it did not create a licence for gender-critical beliefs to ‘misgender’ trans persons with impunity. However, the true impact of such a decision remains to be seen. 

CONTACT BETH

If you would like more information or advice relating to this article or an Employment law matter, please do not hesitate to contact Beth Leng on 01727 798046.

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