Can the belief that sex cannot be biologically changed be protected by the Equality Act?

The Employment Appeal Tribunal (“EAT”) in the case of Forstater v CGD Europe and others has considered whether an individual’s gender-critical beliefs that sex is immutable, for example the belief that a trans woman who has undergone a gender reassignment procedure is still a man, could be protected under the Equality Act 2010 as a philosophical belief.

Background

Maya Forstater (“the Claimant”) was a visiting fellow at CGD Europe (“the Respondent”), a think tank. The Claimant engaged in online debates about gender identity, as part of which she expressed her views on the immutability of sex. Her colleagues complained to CGD Europe that these comments were transphobic and that some of her colleagues found them offensive. Following an investigation by the Respondent, the Claimant’s visiting fellowship was not renewed. The Claimant subsequently brought a claim to the Employment Tribunal for discrimination on the grounds of her philosophical belief.

The Law

The Equality Act 2010 contains a list of ‘protected characteristics’, one of which is protection for holding a ‘philosophical belief’. For a belief to be given this protection, it must meet certain criteria which will be applied by a Court or Tribunal and these are:

  • 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 important; and
  • It must be worthy of respect in a democratic society and compatible with human dignity and the fundamental rights of others.

Decision

The Employment Tribunal at first instance found that the Claimant’s beliefs could not be protected. In particular, the Tribunal focused on the fact that the Claimant’s views were ‘absolutist’ in nature because the Claimant would refer to someone by the sex that she considered appropriate, regardless of their personal preferences, and that this meant they could not be protected as a philosophical belief. The Claimant appealed to the EAT.

The EAT upheld the appeal. In disagreeing with the Tribunal’s conclusions and application of the law, the EAT found that the Claimant’s belief would only have been excluded from protection if it was to be so extreme akin to Nazism or totalitarianism. The Claimant’s beliefs were widely shared and did not seek to ‘destroy’ the rights of trans persons. The EAT found that the Claimant’s views fell within the protection under the Equality Act 2010 and that the matter would be remitted to a new Tribunal to determine whether the Claimant’s claims can succeed.

Comment

This is an important judgment for employers to take note of and certainly one which will add fuel to an already long-running debate on this issue. The EAT actually acknowledges in its judgment that some trans persons will be disappointed by the judgment. However, there is an extract which is worth replicating here, as the following points are important going forwards on this issue:

  1. This judgment does not mean that the EAT has expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing.
  2. This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of EqA will be for a tribunal to determine in a given case.
  3. This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA. They do. Although the protected characteristic of gender reassignment under s.7, EqA would be likely to apply only to a proportion of trans persons, there are other protected characteristics that could potentially be relied upon in the face of such conduct.
  4. This judgment does not mean that employers and service providers will not be able to provide a safe environment for trans persons. Employers would continue to be liable (subject to any defence under s.109(4), EqA) for acts of harassment and discrimination against trans persons committed in the course of employment.

Case reference: Forstater v CGD Europe and others UKEAT/0105/20/JOJ

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Legal 500 2019