The EAT has ruled that a philosophical belief will only lose protection under discrimination law if it is the kind of belief akin to espousing Nazism or totalitarianism. The fact that a belief is offensive, shocking or even disturbing to others will not prevent it from being a protected belief. Treating the holder of a protected belief less favourably, simply because they have that belief, is unlawful. However, this does not change the position with regard to manifesting beliefs: if an individual chooses to manifest their belief in a way that amounts to discrimination or harassment of others, this remains unlawful and an employer should continue to take reasonable steps to prevent such behaviour. The practical implications of the ruling for employers are discussed below.
The case of Maya Forstater v CGD Europe concerned what are commonly described as gender-critical beliefs. According to the judgment, the claimant (Maya Forstater) holds the belief that biological sex is real, important, immutable and not to be conflated with gender identity. She considers that statements such as “woman means adult human female” or “trans women are male” are statements of neutral fact and are not expressions of antipathy towards trans people or “transphobic”. She believes that it is not “incompatible to recognise that human beings cannot change sex whilst also protecting the human rights of people who identify as transgender”. She would usually seek to respect a transgender person’s choice of preferred pronoun in social and professional contexts but considers that it is appropriate in some contexts to refuse to do so. Some of her colleagues at CGD found her statements about the issue on Twitter offensive and complained, leading to the non-renewal of her consultancy contract.
Previous case law (Grainger plc v Nicholson) has established that a belief will be a protected belief for discrimination law purposes if it satisfies a number of criteria: the belief must: (i) be genuinely held, (ii) be a belief rather than an opinion or viewpoint based on the present state of information available, (iii) concern a weighty and substantial aspect of human life and behaviour, (iv) attain a certain level of cogency, seriousness, cohesion and importance, and (v) be worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others.
The first instance employment tribunal ruled that the claimant’s belief failed the fifth criterion, being not worthy of respect in a democratic society. The EAT disagreed. It referenced the European Convention on Human Rights and associated caselaw which has established that only the gravest forms of hate speech should not be protected. The EAT’s reasoning centred around the importance of freedom of belief, pluralism, tolerance and freedom of expression as the cornerstones of a liberal democracy, and noted that the freedom of belief includes the freedom to be wrong and the freedom to believe things that others may find shocking or offensive. It also noted that particular care should be taken before condemning widely shared beliefs as not worthy of respect, all the more so where those beliefs are consistent with the law. Currently the Gender Recognition Act provides for gender reassignment for official legal purposes but does not require individuals to recognise an acquired gender in other contexts nor to believe something that they do not. The EAT considered that the employment tribunal had erred in viewing the “absolutist” nature of the belief as relevant to deny protection and in failing to appreciate the nuance in the claimant’s position as to when she would misgender trans persons. It clarified that manifestation should not be the focus of enquiry at the preliminary stage of deciding whether a belief is protected, and is only relevant to the extent it plays a part in determining whether the belief satisfies the Grainger criteria, eg in establishing the cogency or cohesion of the claimant’s belief.
Individuals are also protected from discrimination because of a lack of belief. The EAT ruled that the employment tribunal was wrong to suggest that the lack of belief has to satisfy the Grainger criteria; if the belief satisfies the criteria, then discrimination because of a lack of that belief (for example, due to not thinking about the issue or being undecided) is also unlawful.
It has been reported that CGD has said it will not appeal the EAT’s decision on whether the belief itself was protected; the case will therefore return to the employment tribunal to determine whether there was unlawful discrimination because of or related to the belief. The EAT is due to hear another appeal on similar facts, Mackereth v Department of Work and Pensions, on 18 October 2021.
Implications for employers
The ruling is important in clarifying the broad potential scope of protected beliefs (not confined to beliefs on transgender issues). As the EAT recognised, this decision means that very few beliefs will fail to meet the fifth Grainger criterion.
In relation to transgender issues, both gender-critical and gender-theory beliefs will be protected beliefs. The challenge for employers will be in identifying when manifestation or expression of those beliefs amounts to discrimination or harassment for which it is appropriate to discipline staff. This could be discrimination or harassment related to having a particular belief or related to gender identity (bearing in mind that, although only around 1% of the UK population is thought to be transgender or non-binary according to Stonewall, in some cases gender identity-related comments could create an offensive work environment for colleagues regardless of their own gender identity).
A persistent refusal by an employee to use a transgender employee’s preferred pronouns with the intent or clear effect that this causes offence would clearly fall on the wrong side of the line. Staff should be asked to use preferred pronouns as a simple matter of courtesy. Requiring all staff to specify their preferred pronouns in email footers, rather than making it voluntary, could amount to discrimination against those with gender-critical beliefs.
Less straightforward will be the situation where non-transgender employees consider that a colleague’s expression of gender-critical beliefs, perhaps in response to news items, is offensive; the way in which they respond could then create an intimidating work environment for those holding the gender-critical beliefs. Similar situations could of course arise based on other protected characteristics. The expression of beliefs, or of lack of support for a belief, in discussions at the workplace or on social media will not necessarily amount to discrimination or harassment of those holding conflicting beliefs, and therefore to discipline the speaker may itself be discriminatory. Much is likely to depend on context: were the views expressed in a respectful, measured and non-provocative manner; what guidance (if any) did staff policies contain in relation to the discussion of views in the workplace; were the views expressed on a private social media account or in an open forum at the workplace; was the speaker aware of the actual or potential sensitivity of the issue for a colleague, perhaps because they or a family member are transgender; was the discussion instigated by the speaker or the colleague finding it offensive? Ideally staff training and policies on the discussion of this and other sensitive topics should address the inherent nuances and seek to encourage understanding and mutual respect of differing views.