We blogged in May about the Equality and Human Rights Commission's intervention in Forstater v. Center for Global Development. The EAT has now reversed the tribunal's decision that Ms Forstater's gender critical beliefs were not protected.
The EAT established the test for determining if a belief qualifies for protection back in 2010. The so-called Grainger test involves five elements:
- The belief must be genuinely held.
- It must be a belief, not an opinion or viewpoint based on the present state of information available.
- It must be a belief as to a weighty and substantial aspect of human life and behaviour.
- It must attain a certain level of cogency, seriousness, cohesion and importance.
- It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
This last element was at issue in the Forstater case. Ms Forstater believes that sex is an immutable biological status, decided at birth. The tribunal held that, because of the impact of this belief on transgender individuals, it was not compatible with human dignity and conflicted with the fundamental rights of others.
The EAT overturned the tribunal's decision. The tribunal had fallen into error by assessing the merits and validity of Ms Forstater's belief. When it came to the question of whether her belief was worthy of respect in a democratic society, the EAT considered case law on the scope of the European Convention of Human Rights (ECHR). Only the "gravest forms of hate speech" are excluded from protection under the ECHR. That led the EAT to conclude that Ms Forstater's belief was protected. It may be controversial, and some may find it offensive or shocking, but it was not such an extreme belief that it did not qualify for protection. It did not fall into the same category as the gravest forms of hate speech.
The judgment does not affect the protection from discrimination available to trans persons. It will not allow those holding gender critical beliefs to misgender trans persons without any consequences. The EAT stressed that it was not expressing any view on the merits of either side of the transgender debate. That falls outwith its remit.
The impact of this lower bar for a belief to qualify for protection is that vastly fewer beliefs should fail due to the fifth element of the Grainger test. The EAT expressed its hope that tribunals would have to spend less time and effort analysing whether a belief qualifies for protection.
Instead, the focus should be on the critical question: has there been discrimination? If an employer treats an individual less favourably because they hold a particular belief, that will be unlawful. That does not mean the holder of a particular belief cannot act with impunity. If they manifest their belief in a way that is inappropriate, particularly if it amounts to harassment of someone with another protected characteristic, employers will be able to take suitable action in response. Employers often face a difficult balancing act when trying to respect employees' beliefs, not least when they conflict.