The UK Employment Appeal Tribunal has ruled that ‘gender critical’ beliefs are protected philosophical beliefs for equality law purposes, while confirming that a belief in ‘gender identity’ is also a protected characteristic. This means that it is unlawful to discriminate against someone because they do or do not hold either of those beliefs.
Background to the case
Maya Forstater was a consultant for CGD Europe, a not-for-profit think tank which focuses on international development. She was a writer and researcher on sustainable development and worked for CGD from November 2016 until around October 2018, when her contract was not renewed. This was after colleagues claimed that some of her tweets about sex and gender were ‘transphobic’, ‘exclusionary or offensive’ and made them feel ‘uncomfortable’.
Forstater brought claims in an Employment Tribunal (ET) alleging direct discrimination and harassment because of her ‘gender critical’ beliefs. The ET held a preliminary hearing to determine whether her beliefs amounted to ‘philosophical beliefs’ within the meaning of the Equality Act 2010. Establishing a protected philosophical belief was a necessary first step before she could argue that she had been discriminated against because of her views. If Forstater won on this point, she would still have to show that there had been discrimination in order to win her claim.
The Equality Act provides that it is unlawful to discriminate against someone because of a protected characteristic. ‘Religion or belief’ is one of the nine specified ‘protected characteristics’, which means it is unlawful to discriminate because of someone’s belief (or lack of belief). The list of protected characteristics also includes ‘sex’ and ‘gender reassignment’.
A decision of the Employment Appeal Tribunal (EAT) in 2009 (Grainger plc v Nicholson) established the criteria that are relevant when deciding whether a belief qualifies for protection. The five ‘Grainger criteria’ include factors such as that the belief must be genuine, related to a substantial aspect of human life and attain a certain level of cogency, cohesion and importance. The fifth condition is that the belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
Employment Tribunal decision
The ET found that Forstater’s beliefs were not protected philosophical beliefs because they failed the fifth Grainger condition, in that they were not worthy of respect in a democratic society.
Forstater’s beliefs were broadly that there are only two sexes in humans: male and female. She believed sex correlates to reproductive biology (with each sex producing either ova or sperm if everything is ‘working’). Women are adult human females and men are adult human males. It is impossible to change sex, which is determined at conception, but it is possible for someone to identify as of the other sex and change their legal sex by acquiring a gender recognition certificate (GRC). Forstater stated she would in most social situations seek to be polite to trans people and respect their pronouns but would not feel compelled to accept how they identified, particularly when discussing whether or not it was appropriate for trans women to access female-only spaces and services.
The ET found that Forstater’s view was of an ‘absolutist’ nature and incompatible with human dignity and the fundamental rights of others. It also concluded that her denial that people with a GRC were the sex to which they had transitioned and her belief that change of sex was a ‘legal fiction’ were not beliefs worthy of respect in a democratic society.
The ET went on to consider Forstater’s lack of belief in gender identity. A ‘gender identity’ belief is a one that everyone has a gender which may be different from their sex at birth and which effectively trumps sex. A person with this belief therefore regards trans men as men and trans women as women. The ET found that Forstater did not have a protected lack of belief, because the Grainger criteria also had to be applied to lack of belief. It concluded that her lack of belief in gender identity necessarily involved the view that trans women were men, which failed the fifth Grainger condition.
The EAT’s decision
Forstater appealed to the EAT, which overturned the ET’s decision and ruled that Forstater’s gender critical beliefs were protected philosophical beliefs. The EAT also affirmed that a belief in ‘gender identity’ was a protected philosophical belief.
The Grainger criteria were derived from various decisions on the European Convention on Human Rights (ECHR) in relation to rights to freedom of thought, conscience and religion (article 9) and freedom of expression (article 10). Having reviewed this case law, the EAT’s conclusion was that the fifth Grainger criterion set a low bar. A philosophical belief would only be excluded from the scope of protection if it was a grave violation of ECHR principles, seeking to destroy those rights. Examples might include a belief in torture or inhuman punishment, and beliefs akin to Nazism or espousing totalitarianism.
The EAT considered that Forstater’s beliefs did not get anywhere near to approaching the kind of belief that would fall completely outside protection. The fact that some people would find her beliefs offensive, shocking or disturbing did not mean they fell completely outside the scope of protection given to philosophical beliefs.
The EAT also said that the manifestation of any belief (i.e. how someone expresses or acts on their belief) should not be a focus at the stage of deciding whether the Grainger criteria are met. At this stage, manifestation is only relevant when it is a factor in considering the Grainger criteria, for example, whether the belief is cogent and coherent. The way in which a belief is manifested may justify not granting protection at a later stage, once the threshold test has been passed.
According to the EAT, it is not for a court to evaluate the merits of any belief and the ET had strayed into doing so. Dogmatic philosophical beliefs including those with little basis are as entitled to protection as any others.
The ET had also been wrong to consider that the fact that a trans woman held a GRC meant that Forstater could not under any circumstances to refer to her as a man. A GRC entitled the holder to recognition of the acquired gender for certain legal purposes, subject to certain exceptions. Referring to a trans person by a previous gender might amount to harassment under the Equality Act. Whether or not it does is a fact sensitive question depending upon the perception of the trans person, all the other circumstances and whether it is reasonable for the conduct to have the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment.
The EAT went on to disagree with the ET’s finding that a lack of philosophical belief necessarily meant holding a positive view opposed to the belief in question. A lack of belief was merely an absence of belief and might arise from having no view on the subject at all. That lack of belief was protected irrespective of whether the Grainger criteria could be applied to it, and the EAT found it difficult to see how the criteria could be applied to a complete absence of belief. It concluded that a belief in ‘gender identity’ is a protected philosophical belief, as is a lack of belief in it.
When considering whether gender critical beliefs were ‘worthy of respect in a democratic society’, the EAT said two other factors were relevant. Firstly, the fact that gender critical views were widely shared suggested they should be considered carefully and not be condemned out of hand. Secondly, the belief that sex is immutable and binary was in fact the current position under UK law.
The ET and EAT hearings were on the preliminary issue of whether Forstater’s beliefs met the threshold to qualify as protected beliefs and therefore whether she could bring a discrimination claim on grounds of belief at all. The EAT’s judgment is not a finding that she was discriminated against and is not the end of the proceedings.
The claim will now be sent back for an ET to consider whether Forstater was discriminated against or harassed because of her beliefs (or lack of them).
Implications for employers
The EAT emphasised that its judgment was not expressing any views on the merits of the transgender debate. It does not mean that trans people can be misgendered with impunity or are otherwise losing protection against discrimination.
As a result of this decision, gender critical views and a belief in gender identity are both protected philosophical beliefs. Gender reassignment and sex are also protected characteristics. As such, anyone sharing these protected characteristics has legal protection from unlawful discrimination and harassment.
Harassment includes conduct which has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for someone else. When considering whether something has an effect, the perception of the complainant, the other circumstances and whether it is reasonable for the conduct to have that effect are taken into account.
Employers should ensure that people are not bullied, harassed or stigmatised for their beliefs, their sex or the fact that they are transgender. Because conflicting beliefs are protected, employers should be careful not to allow workers to be offensive to others, nor to allow people to be bullied because their views are unpopular, if they have a good reason for expressing them and they do so respectfully.
Examples of harassment in this context might include:
- intentionally misgendering transgender people or ‘deadnaming’ them by using an incorrect name;
- calling women ‘TERF’, which stands for ‘Trans-Exclusionary Radical Feminist’, and is used as a slur against those with gender critical views, sometimes accompanied by threats of violence or abuse;
- abusing, insulting or joking about transgender people or those with gender identity or gender critical views.
Employers should also be aware of the risks of indirect discrimination. This occurs if an employer applies a provision, criterion or practice to everyone, but which puts anyone sharing a philosophical belief at a particular disadvantage and is not a proportionate means of achieving a legitimate aim. For example, having a compulsory ‘pronoun’ policy forcing all staff to specify pronouns would disadvantage those who did not share gender identity beliefs. Such a practice has the legitimate aim of seeking to create an inclusive environment for transgender and non-binary people, but a compulsory policy is unlikely to be a proportionate way of achieving it (although a genuinely voluntary one might be). Decisions about whether an aim is legitimate and whether conduct is proportionate are very fact-sensitive and will involve balancing rights.
Although this decision was about gender critical views, it has broader implications by confirming the low threshold that must be met for a belief to meet the fifth Grainger criterion. Provided a belief is genuine, meets a basic level of cogency and coherence, is about something substantial and is not totalitarian, it is likely to be a protected philosophical belief. Rather than focusing on this test, employers should concentrate more on whether something said or done could reasonably be seen to create an intimidating, degrading or offensive environment for others.
Forstater v CGD Europe and others, judgment available here.