Researcher, Ms Forstater, worked for the Centre for Global Development. When her contract was not renewed, she claimed that she had been discriminated against because of her “gender critical” belief. She had become engaged in the debate about the UK government’s proposed amendments to the Gender Recognition Act 2004 which would permit people to self-identify their gender. She believed that sex is a material reality and should not be conflated with gender or gender identity, and expressed her views on social media, which some people found offensive and “transphobic”.
The tribunal found Ms Forstater’s belief was not a valid “philosophical belief” which qualified for protection under the Equality Act. It concluded that she was an “absolutist” in her view of sex, and that it was a core component of her belief that she would refer to a person by the sex she considered appropriate, even if it violated their dignity or created an intimidating, hostile, degrading, humiliating or offensive environment. That approach was not worthy of respect in a democratic society.
The EAT disagreed, finding that a belief will only be unworthy of respect in a democratic society where it is the kind of belief the expression of which would be akin to totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms. Her belief might be offensive to some, and potentially may result in the harassment of trans persons in some circumstances. But hers was not a belief that sought to destroy the rights of trans persons. The EAT noted the evidence that Ms Forstater’s belief was widely shared and consistent with the law.
The case was referred to a new tribunal to determine whether the treatment complained about was because of, or related to, that belief.
Key Action Points for Human Resources and In-house Counsel
The EAT did not say that those with gender-critical beliefs can “misgender” trans persons with impunity – they are still subject to the law like everyone else, so whether or not their conduct amounts to harassment or discrimination will be for a tribunal to decide at the relevant time.
Furthermore, this judgment does not mean that trans persons don’t have protection against discrimination and harassment; and it doesn’t mean that employers and service providers are not able to provide a safe environment for trans persons
This case is the latest in a line of cases which have considered whether a person’s beliefs constitute protected philosophical beliefs. What is very clear is that every case is assessed on its facts and there is no blanket approach.