The EAT has held that a gender critical belief, including a belief that sex is immutable and should not be conflated with gender identity, is a protected philosophical belief.
The facts
Workers are protected from discrimination on the grounds of religious and philosophical belief. In 2010, the EAT gave guidance about what kinds of belief that should be protected, setting out five criteria for establishing a protected belief. Named after the case in which this guidance was given, these are known as the “Grainger” criteria. The fifth of these criteria is that the belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
CGD Europe is a not for profit think tank that focuses on international development. Ms Forstater was a visiting fellow who worked for CGD under a consultancy agreement. She believes that sex is a material reality that should not be conflated with gender identity, and that, while a person can identify as another sex and ask others to respect this, and can change their legal sex, this does not change their actual sex.
Ms Forstater engaged in debate about this on social media, making remarks that some trans people found offensive. These included comments that, while she would generally be polite to any trans-person and use their preferred pronouns, she believed that there are only two sexes, male and female. She expressed views in the light of proposed changes to the Gender Recognition Act which the Government have now dropped. She commented about trans women using female-only spaces and services, saying that while “it may be 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, upsetting males is not a reason to compromise women’s safety, dignity and ability to control their own boundaries…”. Some of her colleagues complained about her comments and her contract was not renewed.
Ms Forstater claimed, among other things, that her gender-critical beliefs were protected under discrimination legislation, and that the non-renewal of her contract was discriminatory.
At a preliminary hearing lasting seven days, the employment tribunal decided that Ms Forstater’s beliefs did not amount to a protected belief because they did not satisfy the fifth Grainger criteria (that the belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others).
Ms Forstater appealed to the EAT, which allowed her appeal. The EAT held that gender critical beliefs, including a belief that sex is immutable and should not be conflated with gender identity, are protected by discrimination legislation. The EAT considered that it will only be in extreme cases that a belief will fail to be protected on the basis of the fifth Grainger criteria. A belief would have to be along the lines of Nazism or totalitarianism, or espouse violence and hatred in the gravest of forms, to fail that criteria. The EAT indicated Ms Forstater’s gender critical beliefs, which are held widely by society, and are consistent with the law on sex or gender, do not come close to such extreme cases. Holding or expressing such beliefs does not inherently interfere with the rights of trans people, even though some people may find the beliefs offensive or even distressing.
Ms Forstater’s case will now go back to the employment tribunal to decide whether on the facts she was discriminated against. We understand the case is not being appealed.
What does this mean for employers?
While this is an important case, the EAT made clear that this judgment has limitations. In particular, this judgment does not mean that:
- The EAT was expressing any views on the transgender debate.
- Those with gender-critical beliefs can “misgender” trans persons: depending on the circumstances, doing so may constitute harassment.
- Trans persons are not protected against discrimination and harassment.
- Employers will not be able to provide a safe environment for trans persons.
Employers should emphasise to their employees the need to treat people with dignity and respect, and not make knee jerk decisions when conflicting views arise. Employers will need to carry out a careful balancing act when considering whether to take any form of disciplinary action against those who manifest gender critical beliefs in the workplace. There may be some cases where it will be right for employees to expect some limitations on how views are expressed in the workplace, as well as potentially outside of it such as via social media. This will require a careful assessment of all the relevant circumstances in each case.
