331: Are gender critical beliefs protected?

In Forstater v CGD Europe and others, overturning the decision of an employment tribunal, the EAT has ruled that gender-critical beliefs qualify for protection under the Equality Act 2010. The claimant in this case believes that biological sex cannot be changed and should not be confused with gender identity, and therefore that trans women are men.

Ms Forstater was a consultant for CGD Europe, advising on sustainable development projects. She has an active social media presence and regularly posts comments relating to the transgender debate, for example, in relation to proposed amendments to the Gender Recognition Act which would have facilitated legal recognition of self-identified gender. Following concerns raised by staff that some of Ms Forstater’s tweets were transphobic and offensive, CGD Europe conducted an investigation into her conduct. This resulted in her visiting fellowship and consultancy not being renewed. Ms Forstater brought various claims in the employment tribunal, including a claim of direct discrimination and harassment on grounds of her philosophical beliefs.

A preliminary hearing was held to determine whether Ms Forstater’s gender-critical beliefs amounted to a philosophical belief qualifying for protection under the Equality Act. Applying the criteria set out in Grainger plc and others v Nicholson, the employment tribunal concluded that her beliefs did not qualify for protection because they were absolutist in nature and not compatible with human dignity or worthy of respect in a democratic society. For example, Ms Forstater would refer to a person by the sex she considered appropriate even if this violated their dignity or created a hostile, degrading or offensive environment for them.

On appeal, the EAT disagreed with the tribunal’s reasoning. In the EAT’s view, a belief would have to be nearer totalitarianism or Nazism or incite violence and hatred in the gravest of forms, to be excluded from protection on grounds of not being worthy of respect in a democratic society. Whilst offensive and abhorrent to some, Ms Forstater’s gender-critical beliefs were widely shared, including amongst respected academics, and did not seek to destroy the rights of trans persons. The employment tribunal had failed to follow the principle that it should not enquire into the validity of a belief and must remain neutral as between competing beliefs. In addition, the tribunal had been wrong to rely on the absolutist nature of Ms Forstater’s belief. The firmness with which a belief is held, even if others might think it irrational or offensive, is not a reason to deny protection against discrimination.

This case highlights that the potential for offence is not a reason to exclude a belief from protection altogether. The EAT also stressed that the judgement was not to be taken as expressing any view as to the merits of the transgender debate and did not affect the right of trans individuals to be protected from discrimination or harassment. Ms Forstater was supported by the Equalities and Human Rights Commission, which has emphasised the importance of ensuring that people are protected from discrimination because of their religious or philosophical beliefs even in cases where those beliefs are highly contested. However, this decision may be appealed, and the merits of Ms Forstater’s discrimination claim remain to be determined.