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In brief

A belief that biological sex is immutable is a protected belief under the Equality Act 2010, the Employment Appeal Tribunal has ruled. The case will now return to the employment tribunal to decide whether the claimant was discriminated against because of her belief when her consultancy contract was not renewed.


Key takeaways

  • The judgment focuses on principles of freedom of speech, and about whether Ms Forstater’s belief was protected under the Equality Act.  It does not express any view on the merits of either side of the transgender debate.
  • Trans people are protected against discrimination and harassment under the Equality Act 2010.  Whether, for example, misgendering a trans person (not using their preferred pronouns, for example) is harassment or discrimination will be for a tribunal to determine on the facts of that case.
  • Those with gender-critical beliefs are entitled to equal protection against discrimination and harassment.  Name-calling such as ‘terf’ or ‘bigot’ may also amount to harassment or discrimination.
  • Difficult situations arise where one employee’s beliefs conflict with the rights of another.   Policies should be applied neutrally and should reflect the importance of respect at work. All employees, whatever their views or protected characteristics, are expected to respect one another.
  • The decision affects not just employers and employees, but also workers, contract and agency workers, and job applicants. Organisations will also need to consider the wider impact of the ruling on their relationships with customers and the general public, as the Equality Act also applies to service providers.
  • For advice or to discuss what this means for you and your business, please contact your usual Baker McKenzie contact.

In more detail 

Ms Forstater’s consultancy contract was not renewed after she tweeted about proposed reforms to the Gender Recognition Act.  She brought a claim of discrimination on grounds of her beliefs that biological sex is real and immutable. She does not accept that a trans woman is a woman, or that a trans man is a man.   She does not consider her views incompatible with protecting the human rights of trans people and would usually seek to respect their choice of pronouns.

The employment tribunal held that her belief was not protected under the Equality Act.  In Grainger plc and others v Nicholson (2010), the Employment Appeal Tribunal (EAT) set out five criteria which should be met by a protected philosophical belief.  Her belief met the first four (it was genuinely held, not merely an opinion or viewpoint, concerned a weighty and substantial aspect of human behaviour, and attained a sufficient level of cogency, seriousness, cohesion and importance).  However, the judge held it failed the last part of the test (Grainger V) as it was not worthy of respect in a democratic society because it was “absolutist in nature” and she would refer to a person by the sex she considered appropriate “even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment”.  The tribunal concluded that her belief would harm the rights of others and cause harassment to trans people.

The Employment Appeal Tribunal decision

The EAT heard arguments from Ms Forstater, CGD Europe, the Equality and Human Rights Commission and Index on Censorship.

It noted that freedom of expression is one of the essential foundations of a democratic society, and it is not for a court to determine the validity of a belief.  The role of the courts, and of the State, is to remain neutral between opposing beliefs and ensuring that those who hold those beliefs tolerate one another.  Section 10 of the Equality Act must be read and understood in accordance with articles 9 and 10 of the European Convention of Human Rights (ECHR), which attach high importance to diversity of thought, belief and expression and their role in a liberal democracy. 

A protected belief need only meet a modest threshold requirement to be protected under article 9 of the ECHR.  Article 17 of the ECHR prohibits the abuse of ECHR rights to engage in any activity aimed at the destructions of others’ rights and freedoms, although it may be permitted for the State to restrict the manifestation of a belief where protection is necessary to protect the rights of others.  ECJ case law holds that only the most extreme forms of hate speech fall into this category.  Applying these principles, only beliefs caught by Article 17 would not fulfil Grainger V and other beliefs, including those which are shocking, offensive or even disturbing may still be protected.  On that basis, the EAT held that the claimant’s belief that sex is immutable and that biological sex is real was protected under the Equality Act 2010. 

The EAT held that manifestation is not irrelevant (since otherwise, the belief may not come to the employer’s attention at all) but that manifestation should be considered only in determining whether the belief meets the test, and should not be the focus of the inquiry at a preliminary hearing.  An approach that focused on manifestation might lead to the Tribunal considering whether a particular expression of a belief is protected, rather than looking at the belief in general and whether it meets the Grainger test.

Comment

Individuals are entitled not to be discriminated against because of gender critical beliefs. The Act gives the same protection to those who hold protected religious or philosophical beliefs as it does to individuals who face other kinds of discrimination such as because of their sex or because of gender reassignment. 

Difficult situations arise where one employee’s beliefs conflict with the rights of another, and there are many examples in previous cases of employers struggling to deal with these fairly.  The EAT noted that her beliefs are widely shared and consistent with the law on sex and gender.  The ruling acknowledged that, while her views can be upsetting to some people, that does not mean they are unlawful.

While the EAT recognised the strong feelings of the parties, reflective of the debate in wider society about trans rights, it is not expressing a view on either side of the transgender debate.  Those with gender-critical beliefs cannot misgender trans people with impunity.   Whether or not using other pronouns, for example, is harassment or discrimination is for a tribunal to determine on the facts of each case.  

Trans people are entitled to be protected from discrimination and harassment and even if the definition of gender reassignment in the Act does not cover all trans people, they may be able to rely on other protected characteristics to seek redress.  

Employers and service providers must provide a safe environment for trans people, and employers continue to risk liability for any acts against trans persons committed in the course of employment. 

CGD Europe has announced it will not be appealing the EAT decision.  The case will now return to the employment tribunal to consider whether the non-renewal of Ms Forstater’s contract was because of her belief or the way in which she manifested that belief, and if it was, whether it was discrimination.  While there may not be a right not to be offended, employees are entitled to be protected from harassment, so the tribunal will be expected to examine how she manifests her belief in the workplace.  For example, the tribunal found that she would not gratuitously refuse to use someone’s preferred pronouns, and that she would usually do so, but would sometimes refuse to use preferred pronouns if she considered it relevant to do so, for example in a discussion about a trans woman being in a women’s space.

Employers will be watching closely for any guidance on how to handle employee conflict fairly and lawfully, while respecting the rights of all involved.

Case: Forstater v CGD Europe, Employment Appeal Tribunal

Author

James Brown is a Knowledge Lawyer in Baker McKenzie's London office.

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Rachel Farr is a Knowledge Lawyer in Baker McKenzie's London office.

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Mandy Li is a Knowledge Lawyer in Baker McKenzie London office.

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