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7th April, 2022

Gender Critical Belief v Gender Reassignment protections: is that the question?

a hand holding different colour stars

In June 2021, an Employment Appeal Tribunal (“EAT”) decision in the case of Maya Forstater v CGD Europe and Others, held that a “Gender Critical” belief is capable of being protected under section 10 of the Equality Act 2010 as a “philosophical belief”.

Ms Forstater’s discrimination claim has now been reheard in the Employment Tribunal and an outcome is awaited.

Maya Forstater worked as a consultant for CGD Europe, a not-for-profit think tank on international development. In October 2018, her contract was not renewed, apparently after colleagues claimed that some of her tweets about sex and gender were “transphobic”, “exclusionary or offensive” and made them feel “uncomfortable”.

It is unlawful to discriminate against someone because of their “religion or belief” under section 10 of the Equality Act 2010, and Forstater accordingly brought Employment Tribunal claims alleging direct discrimination and harassment, arguing her gender critical beliefs should fall under this provision of the Act as a protected characteristic.

The primary belief that Forstater had expressed was that there are only two sexes in humans: female and male. Very broadly the gender critical belief is that sex correlates solely to reproductive biology and it is therefore not possible to change from ones’ “birth sex”. Forstater recognised individuals can change “sex” on a legal basis through a gender recognition certificate, but argued that ultimately “women” are still adult human females and “men” are adult human males, regardless of how they identify their gender. For the most part, Forstater’s actual actions appear to have been relatively polite. She specifically said on social media that it was not her intention to be unnecessarily antagonistic in tone and accepted people’s use of pronouns, but would not accept how they identified, and did not think trans women should be able to access “female-only” spaces.

Whether a person’s belief is protected by the Act as being a philosophical belief, was considered by the Employment Appeal Tribunal in Grainger Plc v Nicholson. This sets out the current test, which states the belief must be:

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

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”. The Equality Act provides that it is unlawful to discriminate against someone because of a protected characteristic. “Religion or belief” is one of the nine specified “protected characteristics”, which means it is unlawful to discriminate because of someone’s belief (or lack of belief). The list of protected characteristics also includes “sex” and “gender reassignment”.

The case was remitted back to the Employment Tribunal, who recently heard evidence from the parties. The EAT decision had only settled whether the Claimant’s stance on gender was capable of being a protected “philosophical belief” and the Tribunal now must make a decision whether she was actually discriminated against.

Reception of the EAT Judgment

Understandably, the particular issues that arise in Ms Forstater’s claims are deeply divisive.

Gender Critical followers have hailed the EAT decision as a victory for their beliefs. On the flip side of the coin, trans rights activists and trans supporters have decried the decision. It is often perceived that allowing any kind of debate on the right of an individual to self-identify their gender leads to anti-trans sentiment and violence against an already marginalised and vulnerable group of individuals.

However, the truth is somewhere in the middle. The decision itself is only confirming that those particular set of beliefs are capable of being protected, not that Ms Forstater was discriminated against. More importantly, any particular case will be decided on its own facts and the Tribunals will in each case need to consider whether the protection of one person’s Equality Act rights then impinges on another’s equality rights.

In fact, in his Judgment, the Honourable Mr Justice Choudhury (President of the EAT) went to great pains to emphasise that his decision should not be taken to allow anti-trans conduct, and summarised as follows:

“We take this opportunity to reiterate, once more, what this judgment does not mean:

  1. This judgment does not mean that the EAT has expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing.
  2. This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment under the EqA. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of EqA will be for a tribunal to determine in a given case.
  3. This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA. They do. Although the protected characteristic of gender reassignment under s.7, EqA would be likely to apply only to a proportion of trans persons, there are other protected characteristics that could potentially be relied upon in the face of such conduct.
  4. This judgment does not mean that employers and service providers will not be able to provide a safe environment for trans persons. Employers would be liable (subject to any defence under s.109(4), EqA) for acts of harassment and discrimination against trans persons committed in the course of employment.”

In respect of the comment at c. as to the extent to which the protected characteristic of gender reassignment protects trans people, and those who are non-binary or gender-fluid it is worth noting that the, non-binding but informative, decision of the Employment Tribunal in Taylor v Jaguar Land Rover Limited may give an indication how Judges will interpret that particular provision of the Equality Act in future, to include anyone who takes any steps, or plans to take any steps, to change their physical characteristics on a “journey” away from their typical birth sex characteristics.

For employers to note

The issues for employers to consider arising from this should be a refinement on the existing position.

The impact of the EAT 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 trans gender 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 a safe working environment which is free from discrimination and harassment.

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

Whilst we are awaiting the final ET Judgment for Ms Forstater’s claims, bear in mind this case will be decided on its specific facts. If an employee is making cause for concern in using language which the company considers is not in line with its policies on diversity and inclusion, for example, the employer will need to make its own assessment as to whether any action should be taken, and likely take appropriate legal advice.

If you have any queries relating to the issues raised in this article, contact Michael Redston or the Employment Team and we would be happy to advise you.

  • The EAT also said that the manifestation of any belief (i.e. how someone expresses or acts on their belief) should not be a focus at the stage of deciding whether the Graingercriteria are met. At this stage, manifestation is only relevant when it is a factor in considering the Grainger criteria – for example, whether the belief is cogent and coherent. The way in which a belief is manifested may justify not granting protection at a later stage, once the threshold test has been passed.
  • According to the EAT, it is not for a court to evaluate the merits of any belief and the ET had strayed into doing so. Dogmatic philosophical beliefs including those with little basis are as entitled to protection as any others.
  • The ET had also been wrong to consider that the fact that a trans woman held a GRC meant that Forstater could not under any circumstances to refer to her as a man. A GRC entitled the holder to recognition of the acquired gender for certain legal purposes, subject to certain exceptions. Referring to a trans person by a previous gender might amount to harassment under the Equality Act. Whether or not it does is a fact sensitive question depending upon the perception of the trans person, all the other circumstances and whether it is reasonable for the conduct to have the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment.
  • When considering whether gender critical beliefs were “worthy of respect in a democratic society”, the EAT said two other factors were relevant. Firstly, the fact that gender critical views were widely shared suggested they should be considered carefully and not be condemned out of hand. Secondly, the belief that sex is immutable and binary was in fact the current position under UK law.

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