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29th July, 2021

Employment Appeals Tribunal overturns ‘transgender debate’ decision

Employment Appeals Tribunal overturns ‘transgender debate’ decision

Under the Equality Act 2010, philosophical beliefs is a protected characteristic for which a person cannot be discriminated against.

To prove whether a person’s belief is protected by the Act as having a philosophical belief, they must pass the test as set out in Grainger Plc v Nicholson, which states the belief must be:

  1. genuinely held to not a mere opinion or viewpoint based on the present state of information available
  2. a substantial aspect of human life and behaviour
  3. serious, cohesive and with a similar status to a religious belief
  4. worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others

The question of philosophical belief was recently heard at the EAT in the case of Forstater v CGD Europose & Ors, which held that gender critical beliefs that there are only two biological sexes in human beings and that it is impossible for a human being to literally change sex, is protected under the Equality Act 2010.

Background

In 2018, Ms Forstater became engaged in the debate around proposed Gender Recognition Act reforms on Twitter. During this debate, Forstater suggested “sex is immutable and not to be conflated with gender identity”, and as a result, complaints were made to her employer, CGD, as Forstater’s comments were considered transphobic. As a result, her contract with CGD was not renewed, and she brought a claim against CGD of discrimination on the grounds of her philosophical belief.

Mrs Forstater lost her Tribunal case after the judge found her belief to be incompatible with human dignity and the fundamental rights of others, therefore not meeting the fifth test set out in Grainger.

The EAT overturned this stating that her belief was one which is widely shared by others and that her belief “did not seek to destroy the rights of trans persons“, and that the scope of the fifth test in Grainger is “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”.

Many have condemned the EAT’s decision, including Ms Forstater’s previous employer CGD who said this was a “step backwards for inclusivity and equality for all”. The EAT insisted this judgment did not mean that any of the existing protections for people with the protected characteristic of gender reassignment under the Equality Act were in any way undermined.

What does this mean for employers?

The impact of this decision is that employees who hold gender-critical views are entitled to be protected from unlawful discrimination and harassment.  However, this does not change the existing protection of transgender persons from discrimination and harassment under the Equality Act 2010.  It is important that employers ensure that they are clear and mindful of the culture they wish to promote in the workplace.  Employers need to ensure that the workplace strikes a balance between freedom of speech and tolerating opposing views whilst ensuring that a safe working environment that is free from discrimination and harassment.

Regular training to management and staff on equality and diversity is key, as well as ensuring their policies and procedures in relation to diversity, discrimination and harassment are updated and clear.

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