The UK’s Employment Appeal Tribunal (EAT) found on 10 June 2021 in Maya Forstater v CGD Europe and others that gender-critical beliefs—including believing that one’s biological sex is immutable and not to be conflated with gender identity—did qualify for protection under the Equality Act 2010 (Equality Act).
The subject matter of this case is sensitive and controversial. The EAT’s judgment, however, does not express any view as to the merits of either side of the transgender debate. The judgment is solely concerned with whether the Employment Tribunal erred in law in deciding that Ms. Forstater’s belief was not capable of protection under the Equality Act.
Ms. Forstater carried out consultancy work for CGD Europe, an international development think tank. She posted a series of public comments relating to the transgender debate following the launch of the government’s Gender Reassignment Act consultation, which proposed allowing people to legally self-identify as the opposite sex. Some of CGD Europe’s staff raised concerns about Ms. Forstater’s comments, which included statements such as “I don’t think people should be compelled to play along with literal delusions like trans-women are women.” Her colleagues complained that such comments were “trans-phobic”, “exclusionary or offensive” and were making them feel “uncomfortable.”
CGD Europe investigated Ms. Forstater’s conduct. On completion of the investigation, she was not offered further consultancy work and her visiting fellowship was not renewed. Ms. Forstater brought a claim alleging direct discrimination and harassment on the basis of her belief.
The Equality Act prohibits various forms of discrimination but only to the extent that the discrimination relates to one or more “protected characteristics.” Religion or belief is one such protected characteristic. Under s. 10 Equality Act, a belief means any religious or philosophical belief.
The criteria established by UK case law (the Grainger Criteria) used to determine whether a belief is a protected philosophical belief are as follows:
A preliminary hearing was held in November 2019 to determine whether Ms. Forstater’s belief was a philosophical belief within the meaning of the Equality Act.
The tribunal held that Ms. Forstater’s belief was not a philosophical belief because it was not worthy of respect in a democratic society (i.e., it failed to satisfy the fifth Grainger Criteria). The tribunal found that her belief was absolutist in nature, such that she would refer to a person by the sex that she considers appropriate even if it violates that person’s dignity and/or creates an intimidating, hostile, degrading, or offensive environment.
In overturning the tribunal’s ruling, the EAT held that the tribunal erred in its application of the fifth criteria. The EAT described how s. 10 Equality Act must be interpreted in accordance with Articles 9 and 10 of the European Convention on Human Rights (ECHR). Both articles provide for a low threshold for establishing that a belief is worth of respect in a democratic society.
The relevant benchmark when applying the fifth Grainger Criteria is Article 17 ECHR, which carves out from protection any acts that aim to destroy the rights and freedoms contained in the ECHR. Only the most extreme beliefs would be excluded on these grounds, such as pursing totalitarianism, advocating Nazism, or espousing violence and hatred in the gravest of forms. Conversely, beliefs that are offensive, shocking, or even disturbing, and which fall into less grave forms of hate speech, would not be excluded from protection even if the manifestation of such beliefs may be unlawful.
S. 10 Equality Act is concerned with whether a person has the protected characteristic by being of the relevant belief, and not with whether a person manifests anything pursuant to that belief. Employment tribunals should therefore assess the belief in general when considering whether a belief falls within s. 10 Equality Act. Consequently, the EAT criticised the tribunal for making a value judgment based on its own view as to the legitimacy of Ms. Forstater’s belief. The tribunal failed to remain neutral and abide by the cardinal principle that individuals are entitled to their beliefs (subject to a few exceptional cases).
The EAT also highlighted that Ms. Forstater’s belief is widely shared, including by respected academics. Such a belief will need to be considered especially carefully before it can be characterised as not worthy of respect in a democratic society. Her belief is also consistent with previous decisions of UK courts. Where a belief is in accordance with UK law, the EAT described how it wold be “jarring” to find that such a belief was one not worthy of respect in a democratic society.
This decision is an important reminder for employers to be cautious in taking any action against an employee simply for holding certain beliefs. Only rarely will a belief that meets the first four Grainger Criteria be characterised as not worthy of respect in a democratic society and fall outside the scope of the Equality Act’s protection. Respectful debate is not unlawful and employees should tolerate each other even if they hold opposing beliefs.
However, the EAT’s judgment of course does not mean there is now freedom to offend or harass. Referring to a trans person by their pre-Gender Recognition Certificate gender in any of the settings in which the Equality Act applies could amount to harassment related to one or more protected characteristics. On the facts of a particular case, any action taken by an employer can be separable from the protected belief itself if the employee’s act constitutes discrimination or harassment, or adversely impacts the employee’s work.
Further, employees clearly cannot rely on the right to freedom of expression to express hatred, violence, or a totalitarian ideology. Such views are wholly incompatible with democratic principles and would be found not to be worthy of respect.
The case has now been remitted to a newly constituted tribunal which will consider the full merits of the claim.