An employee’s view that it is impossible for an individual to change their sex was held not to be a philosophical belief for the purposes of the Equality Act by an employment tribunal at a preliminary hearing.

Background

Ms Forstater worked as a consultant for the Center for Global Development (CGD), The CGD did not renew Ms Forstater’s contract and she claimed this was because of her ‘gender critical’ opinions. These were reflected in tweets where she posted that a person’s sex cannot be changed regardless of their stated gender identity. Her tweets canvassed her concerns with the proposed reforms to the Gender Recognition Act, stating that expanding the legal definition of women to include both males and females rendered the concept meaningless.

Ms Forstater contended that these views amounted to a philosophical belief within the meaning of the Equality Act 2010 (EqA) and the non-renewal of her contract was therefore a discriminatory act.

Ms Forstater’s claim was also on the basis that she was an applicant for employment and therefore protected under the EqA (as consultants don’t always have protection under the EqA). However, the judge did not decide on this point at the preliminary hearing.

Analysis

The judge found Ms Forstater’s view met many of the required criteria for the definition of a philosophical belief protected by law. He determined that the belief was genuinely held and that the importance she attached to it proved it to be a belief rather than merely an opinion based on the present state of information. He also deemed this was a belief as to a weighty and substantial aspect of human life and behaviour and viewed the fact that her approach is largely supported by current law as evidence that the belief attained the necessary levels of cogency and cohesion.

However, Ms Forstater’s belief was crucially found to be incompatible with human dignity and the fundamental rights of others. This is a key requirement of a “philosophical belief” under the EqA. Ms Forstater’s view denied the right of a person with a Gender Recognition Certificate to be the sex that they have transitioned to. The judge concluded that a core component of her belief was that she would refer to a person by the sex she considered appropriate even if that would violate their dignity and/or create a hostile, degrading, humiliating or offensive environment. This approach was deemed not worthy of respect in a democratic society and so Ms Forstater’s belief failed to meet the definition of a philosophical belief.

The judge also addressed the implications his decision had for freedom of speech. He stated that it was legitimate to exclude a belief that necessarily harms the rights of others. By refusing to accept the full effect of a Gender Recognition Certificate, this belief caused harassment to trans women by insisting they are men and trans men by insisting they are women. The judge said that the human rights balancing act would not work in Ms Forstater’s favour because of her ‘absolutist’ approach.

What can we take from this?

This is a particularly interesting decision in light of the recent employment tribunal ruling that veganism is a philosophical belief. The crucial difference between the two cases is that veganism was not found to be incompatible with the rights of others.