Are Gender-Critical views a “philosophical belief”?

The Employment Appeal Tribunal (EAT) was recently asked to consider whether it agreed with a Tribunal that beliefs regarding gender identity, including that biological sex is immutable (i.e. absolute) and should not be conflated with gender identity, cannot be considered a “philosophical belief” within the Equality Act 2010 (EA).

In 2018 Maya Forstater posted numerous tweets sharing her beliefs about gender identity, including that sex is immutable (i.e. absolute). Some of her colleagues raised concerns about her posts as they felt they were “trans-phobic”, “exclusionary or offensive” and were making them feel “uncomfortable”.  Following an investigation her employer decided not to renew her consultancy contract at the think tank Center for Global Development (CGD).

Forstater argued that she was discriminated against because of her beliefs. In order to qualify for protection under the EQ there are various criteria that must be met, including that the beliefs are worthy of respect in a democratic society, not incompatible with human dignity and do not conflict with the fundamental rights of others.  The tribunal reached the conclusion that she did not satisfy this final criteria. The decision of the tribunal was based on the ‘absolutist’ nature of Forstater’s beliefs that was “not worthy of respect in a democratic society”.

Bearing in mind that only beliefs akin to Nazism or totalitarianism that support violence and hatred in the gravest form would fail to satisfy this criteria, the EAT found, that while her beliefs were offensive to some, they did not fall into this category and are therefore not excluded from the protection. The beliefs in question did not, according to the EAT, seek to destroy the rights of trans persons and were widely shared. As the EAT pointed out, beliefs can be offensive, shocking and disturbing to others, but if occurring in less grave forms are not excluded from the protection.

A tribunal will now decide if the treatment that Forstater complained about was ‘because of’ or ‘related’ to this belief.

The EAT recognised the disappointment of some trans persons that will be caused by this judgment and reiterated that the judgment does not mean that:

• the EAT has expressed any view on the merits of the transgender debate,
• one can ‘misgender’ trans persons with impunity (including Forstater),
• that trans persons do not have protection against discrimination and harassment conferred by the EA; or
• that employers and service providers will not be able to provide a safe environment for trans persons.

As the EAT has pointed out in relation to the last point, employers will be liable for acts of harassment and discrimination against trans persons committed in the course of employment.  Employers should note that equality and employment law require them to uphold the rights of all in the workplace. Speech and beliefs can be protected, and so are the rights of trans people. The challenge for employers is differentiating honest held beliefs from bullying, intimidation or harassment.