EAT case on “gender-critical” belief15 June 2021
On 10 June 2021 the EAT determined that a “gender-critical” belief is capable of protection under the Equality Act 2010 (EqA 2010).
In autumn 2018, Maya Forstater’s visiting fellowship – a consultancy arrangement – with CGD Europe was not renewed. This followed her expression of her “gender-critical” beliefs on social media and CGD’s staff expressing concerns about the same. Her gender-critical beliefs include the belief that “sex is immutable and not to be conflated with gender identity” and that there are only two biological sexes in human beings.
Ms Forstater brought a claim for discrimination on the grounds of philosophical belief at the Employment Tribunal. A Preliminary Hearing was held to determine whether her gender critical beliefs can amount to a philosophical belief within the meaning of section 10 of the EqA 2010. The Tribunal found that they could not. It gave the reasoning that “the belief, being absolutist in nature and whereby the Claimant would “refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment”, was one that was “not worthy of respect in a democratic society”.” The Tribunal held that her beliefs did not pass the Grainger V test.
Ms Forstater appealed and was successful at the Employment Appeal Tribunal (EAT). The EAT held that the Tribunal had erred in its application of the Grainger V test. The EAT found that a philosophical belief would only be excluded for failing to satisfy the Grainger V test if it was the kind of belief the expression of which would be akin to Nazism or totalitarianism and thereby liable to be excluded from the protection of rights under the European Convention of Human Rights. “The Claimant’s gender-critical beliefs, which were widely shared, and which did not seek to destroy the rights of trans persons, clearly did not fall into that category. The Claimant’s belief, whilst offensive to some, and notwithstanding its potential to result in the harassment of trans persons in some circumstances”, fell within the protection under the ECHR and therefore within the EqA 2010.
The EAT went on to carefully emphasise that judgment did not mean that it was a taking side in the ‘transgender debate’; and it did not mean that any of the existing protections under the EqA 2010 for people with the protected characteristic of gender reassignment were in any way undermined.
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