Claimant’s “gender critical” belief is protected under the Equality Act

But EAT makes clear that misgendering may constitute discrimination or harassment.

Trans people are protected by the Equality Act. That at least is not in debate. There is however a fiercely-fought battle being waged on a perceived clash of the rights of trans and non-binary people and the rights of women. Society is moving in some areas towards the removal of distinctions based on sex assigned at birth and accepting that people who identify as a different gender or no fixed gender should be afforded rights, services, and equal treatment on the basis of self-identification. This has sparked concerns for those campaigning for the rights and protections of women that these changes undermine hard won protections and the integrity of “safe spaces” for women and girls.

The EAT now finds itself at the centre of this debate with its recent decision that a “gender critical” belief is protected under the Equality Act. The belief in question is, briefly put, that sex is immutable from the point of conception, that trans women are men and trans men are women.

Not all beliefs are protected under the Equality Act. A religious or philosophical belief is protected only if: it is genuinely held; it is a belief rather than an opinion or viewpoint; it relates to a weighty and substantial aspect of human life and behaviour; it is cogent, serious, cohesive, and important; it is worthy of respect in a democratic society; it is not incompatible with human dignity; and it does not conflict with the fundamental rights of others. A lack of belief can also be a protected characteristic.

In recent years, the courts have been asked to consider the boundaries of this protection, particularly where there is an argument that a belief conflicts with the protected belief or fundamental rights of others. For further detail on such cases, please see the following articles which are available on our website:

• Bakery did not discriminate when refusing to bake a cake bearing a slogan in support of gay marriage
• Doctor who refused to use pronoun chosen by transgender patients was not discriminated against
• Ethical veganism is a philosophical belief subject to protection under the Equality Act 2010

Case details: Forstater v CGD Europe and others

Maya Forstater was a researcher for and visiting fellow of CGD Europe, the European arm of the Center for Global Development, a US think tank. Ms Forstater has a significant social media presence and regularly tweets on issues connected to women’s and trans rights, for example voicing her view that people should not be able to change their legal sex under the Gender Recognition Act 2004 (GRA) on the basis of self-identification and that she should not be compelled to refer to a trans woman as a woman. She worked under a series of consultancy agreements for CGD over a three year period, after which her contract was not renewed.

She brought discrimination claims against CGD, arguing that her contract had not been renewed and she had been discriminated against as a prospective job applicant of CGD on the basis of her belief / lack of belief and sex. A preliminary hearing was held to determine whether her “gender critical” belief was protected under the Equality Act. At first instance, an employment tribunal decided that her belief was not protected because it was not worthy of respect in a democratic society, was incompatible with human dignity, and conflicted with the fundamental rights of others. Our report of this decision can be found on our website: Employment tribunal: a philosophical belief that men and women cannot change their sex is not protected.

Ms Forstater appealed and the EAT has overturned that earlier tribunal decision. The EAT decided that the tribunal was wrong to consider whether the claimant’s belief was valid (for example whether it was supported by current scientific thinking) and clarified that tribunals should not assess whether a particular belief has merit when deciding whether it is protected. The EAT also held that the tribunal was wrong to decide that her belief was not protected because of its “absolutist” nature, commenting that protections extend to rigidly held religious or philosophical beliefs.

The EAT noted that it had to interpret the Equality Act in line with the Human Rights Act and Article 17 of the European Convention on Human Rights when deciding whether a belief is worthy of respect in a democratic society. Article 17 prohibits the abuse of human rights law to engage in any activity aimed at the destruction of the rights and freedoms of others. The EAT noted that courts dealing with the fundamental rights of freedom of thought, conscience and religion, and freedom of expression must first assess whether the claimant falls outside the scope of protection because of Article 17.

In deciding that Ms Forstater’s belief was protected, the EAT stated that it is “only those beliefs that would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection.”

The EAT stated that the claimant’s belief was widely shared in society and did not seek to destroy the rights of trans people. It also commented that under the common law, sex is treated as immutable and fixed at birth, despite the fact that people can legally change their sex by statute under the GRA.

What does this mean for employers?

Notably, the appeal judge included the following section in his judgment to clarify what this judgment does NOT mean for employers and individual rights.

a)      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.

b)      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 the Equality Act will be for a tribunal to determine in a given case.

c)        This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the Equality Act. They do. Although the protected characteristic of gender reassignment under s.7, Equality Act 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.

d)      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), Equality Act) for acts of harassment and discrimination against trans persons committed in the course of employment.

The claimant’s case has been remitted to a fresh employment tribunal to decide whether the claimant was discriminated against or harassed on the grounds on her belief. One key question for the tribunal will be whether the employer acted as it did because of Ms Forstater’s belief or whether it had other reasons for not renewing her contract. This is likely to include an examination of whether CGD was motivated by the belief itself or consequences of the manifestation of that belief, including the potential damage to CGD’s reputation because of the tone of the claimant’s contributions to this public debate and their effect on others.

It remains of fundamental importance that employers take reasonable steps to prevent workplace discrimination and harassment of all kinds. This will include putting in place clear and well-communicated codes of conduct, policies, and statements of organisational values, organising induction and regular update training on equality and diversity, and taking robust action to deal with breaches of such codes and policies.

Scenarios may sometimes arise where beliefs held by an employee create conflict or offence for another person. Having clear rules on workplace and social media interactions can provide a helpful boundary between holding a belief and expressing or manifesting that belief in a way which risks harassing or discriminating against others.