In Forstater v CGD Europe & ors, the Employment Appeal Tribunal (EAT) determined that a belief that there are only two biological sexes in human beings and that it is impossible for a human being to change sex is capable of amounting to a ‘philosophical belief’ within the meaning of s10 Equality Act 2010.
The law
The Equality Act 2010 states that direct discrimination, indirect discrimination and harassment of an employee relating to a protected characteristic is unlawful. There are nine “protected characteristics” covered by the Equality Act. One of these is a person’s religion or philosophical belief.
In addition to the Equality Act, the concept of protecting a person’s freedom to hold religious or other philosophical beliefs without suffering detriments or discrimination is a fundamental right under Article 9 of the European Convention on Human Rights.
In cases where an employee asserts that they have been treated less favourably due to having a philosophical belief, the employee must demonstrate that they possess a philosophical belief which can be protected by the Equality Act. If they cannot demonstrate they have such a belief, they will not be able to pursue a claim under the Equality Act.
To date, we have seen tribunals’ take different stances as to what can amount to a philosophical belief. For instance, we have seen a tribunal hold that vegetarianism is not capable to amounting to philosophical belief. In contrast, a different tribunal found that veganism is worthy of amounting to a philosophical belief. The difference in findings will usually lie in that person’s explanation of why they hold such a belief.
To qualify as a ‘philosophical belief’ under the Equality Act, the belief must satisfy the five criteria set out at para 24 in Grainger plc v Nicholson [2010] and mirrored in the Equality and Human Rights Commission Code of Practice 2011. These are that:
In the Grainger case, the EAT confirmed that a belief in climate change can be a philosophical belief.
Background
Centre for Global Development (CGD is a not-for-profit think that focuses on international development. Ms. Forstater, a tax expert, had consultancy arrangement with CGD. In December 2018, CGD brought the arrangement to an end. Ms. Forstater claimed that this was because she had expressed ‘gender-critical’ opinions. In particular, Ms. Forstater had engaged in debates on social media about gender identity issues, and in doing so made some remarks which some transgender people found offensive. For example, she had tweeted that “men cannot change into women”. Some of her colleagues at work complained that they found her comments offensive.
During the tribunal proceedings, Ms. Forstater’s explained her belief to the tribunal via her witness statement. Extracts from her statements are as follows:
“I believe that there are only two sexes in human beings (and indeed in all mammals): male and female. This is fundamentally linked to reproductive biology”.
“I believe that it is impossible to change sex or to lose your sex. Girls grow up to be women. Boys grow up to be men. No change of clothes or hairstyle, no plastic surgery, no accident or illness, no course of hormones, no force of will or social conditioning, no declaration can turn a female person into a male, or a male person into a female”.
“In particular while it may be disappointing or upsetting to some male people who identify as women to be told that it is not appropriate for them to share female-only services and spaces, avoiding upsetting males is not a reason to compromise women’s safety, dignity and ability to control their own boundaries as to who gets to see and touch their bodies”.
At a preliminary hearing, an employment tribunal found that Ms. Forstater’s beliefs did not amount to a philosophical belief that qualified for protection under the Equality Act. The tribunal accepted that Ms. Forstater’s belief satisfied all but the last of the Grainger criteria and concluded that Ms, Forstater’s beliefs, being absolutist in nature was “not worthy of respect in a democratic society”.
Ms. Forstater appealed and the EAT had to determine whether the tribunal had erred in its judgment that the last limb of the Grainger criteria had been satisfied.
EAT Judgment
The EAT found that the tribunal had erred in its application of the Grainger criteria. The EAT told tribunals to bear in mind that it is only those beliefs that would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society.
In Ms. Forstater’s case, her gender-critical beliefs, were widely shared and it was said did not seek to destroy the rights of trans persons. As such, they did clearly did not fall into that category. While accepting that Ms. Forstater’s belief will have been offensive to certain people, and notwithstanding the potential to result in the harassment of trans persons in some circumstances, the EAT concluded that they fell within the protection under Article 9(1) ECHR and therefore within Section 10 Equality Act.
Commentary
Ms. Forstater has not yet won her claim. She has simply jumped the first hurdle. However, clearly this was a significant one in her claim. It was also a difficult area for the EAT to adjudicate. There is little doubt that a large proportion of people will find Ms. Forstater’s comments offensive. However, if the law is to protect people from suffering detrimental treatment for having their beliefs, then surely it those beliefs which most of us find offensive, disagree with or dislike which are the ones which the law needs protect.
The EAT sought to address a narrow question and point of law. It made it very clear that its judgment did not mean that:
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