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17 February 2020

221: Refusal to accept transgenderism not a protected philosophical belief

In Forstater v CGD Europe, the Employment Tribunal held that a belief that there are only two biological sexes and that it is therefore not possible to change sex is not a philosophical belief which is protected under the Equality Act 2010.

Ms Forstater works as a researcher and writer on topics related to public policy. From 2015 to 2018 she worked as a consultant for the European arm of the Centre for Global Development (CGD). In 2018, Ms Forstater began to tweet about her opposition to proposed changes to the Gender Recognition Act 2004 to allow people to self-identify their gender. She also expressed her core belief that there are only two sexes and that it is not possible for a male to become a female, or a female to become a male. This meant that, in her view, trans women are in reality men, and vice versa. A Gender Recognition Certificate would not alter her position. Some of CGD’s staff raised concerns about these tweets, alleging that they were transphobic. Ms Forstater’s last consultancy agreement with CGD ended on 31 December 2018 and was not renewed.

Ms Forstater brought a claim alleging that her consultancy agreement was not renewed because she had expressed ‘gender critical’ views which amounted to a philosophical belief under the Equality Act 2010. Before the substantive hearing of her discrimination claim, a preliminary hearing was held to establish whether her belief satisfied the definition of a philosophical belief.

In order to qualify as a philosophical belief, a belief must satisfy the five criteria set out in Grainger plc v Nicholson:

  • it must be genuinely held;
  • it must be a belief and 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; and
  • 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.

The Tribunal concluded that Ms Forstater’s belief met the first four of these criteria but, because of its absolutist nature, was not worthy of respect in a democratic society because it was incompatible with human dignity and conflicted with the fundamental rights of others. The Employment Judge noted, in particular, that she was not entitled to ignore that if a person has transitioned from male to female, and has a Gender Recognition Certificate, that person is legally a woman. Ms Forstater’s belief that she would only refer to a person by the sex she considered appropriate, even if it violated their dignity or created a humiliating or offensive environment, was not worthy of respect in a democratic society. Accordingly, her belief could not be protected under the Equality Act.

This judgment contains an interesting and detailed analysis of current legal issues surrounding gender. As the Tribunal acknowledged in this case, the test for a philosophical belief does not constitute a high hurdle for a claimant. However, this decision is not a binding authority and is likely to be appealed. This case also highlights the importance of maintaining clear, up-to-date equality and diversity policies as well as ongoing training programmes in order to ensure that managers and employees understand what is and is not acceptable behaviour, and the consequences of breaching these policies.

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