The belief that sex is immutable is a protected philosophical belief under the Equality Act 2010

News  |   16 June 2021

Written by
Faye Shortall, Solicitor

In Maya Forstater v CGD Europe and Others, the Employment Appeal Tribunal (EAT) has held that “gender-critical” beliefs, including that sex is immutable, are protected under the Equality Act 2010 (EqA).

Maya Forstater (F) worked under a series of consultancy agreements with CGD, the last of which terminated on 31 December 2018. During her time with CGD, F had expressed “gender-critical” opinions. She believes “that sex is immutable and not to be conflated with gender identity”. F made remarks during debates on social media about gender identity issues which some transgender people found offensive and trans-phobic. This included posting a tweet questioning government plans to amend the Gender Recognition Act which would have made legal recognition of self-identified gender easier. Some of F’s colleagues subsequently complained about her and, following an investigation, her latest consultancy agreement was not renewed.

F claimed that her gender-critical views constituted a protected “philosophical belief” under the EqA and that she had been discriminated against because of her views. Section 10 of the EqA provides that “belief means any religious or philosophical belief”. At a preliminary hearing, the Employment Tribunal (ET) held that F’s gender-critical beliefs did not qualify for protection under the EqA as they did not satisfy the criteria set out by the EAT in Grainger plc & Others v Nicholson.

These criteria are that:

a) The belief must be genuinely held;

b) It must be a belief and not an opinion or viewpoint based of the present state of information available;

c) It must be a belief as to a weighty and substantial aspect of human life and behaviour;

d) It must attain a certain level of cogency, seriousness, cohesion and importance; and

e) It must be worthy of a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

The ET did not accept that F’s beliefs satisfied the last criteria. It concluded that her beliefs that she would refer to a person by the sex she considers appropriate, regardless of whether this violated that persons dignity and/or created an intimidating, hostile, degrading or offensive environment were “not worthy of respect in a democratic society”. The employment judge concluded that F was “absolutist” in her view and that she was not entitled to ignore the rights of a transgender person and the “enormous pain that can be caused by misgendering”.

On appeal, the EAT concluded that a philosophical belief should only be excluded in terms of the final criteria set out above if it was the kind of expression or belief akin to Nazism or totalitarianism and thus excluded from protection under the European Convention on Human Rights (ECHR). The EAT held that as F’s beliefs “did not seek to destroy the rights of trans persons” and, therefore, did not fall into a category excluded from protection under the ECHR. Whist F’s beliefs may have been offensive, the EAT concluded that they fell within protection of the ECHR and, consequently, within the EqA.

It is important to note that the EAT made clear that it was not expressing any view on the merits of either side of the transgender debate. Those with gender-critical beliefs cannot “misgender” trans persons with impunity and trans persons certainly have protections against discrimination and harassment under the EqA. Employers can continue to be liable for acts of discrimination and harassment against trans persons committed in the course of employment.

F said that she was “delighted to have been vindicated” but CGD said that the decision was a “step backwards for inclusivity and equality for all”.

The ruling in this case means the gender critical beliefs are now afforded the same protection under the EqA as environmental beliefs and ethical veganism. Employers must continue to ensure that any disputes in the workplace are dealt with fairly, considering the views and rights of all parties involved.

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