Jane Fielding and Connie Cliff consider what a recent high-profile ruling on gender-critical views means in practice.
In recent years, gender identity has become a topic attracting significant media coverage and often sparking heated social media debate. So too has the question of what amounts to philosophical belief under section 10 of the Equality Act 2010 (EqA). The Employment Appeal Tribunal (EAT) has now considered whether gender-critical beliefs, including a belief that sex is immutable and should not be conflated with gender identity, are protected under the Equality Act 2010.
On 10 June 2021, the EAT handed down its judgment in Forstater v CGD Europe and ors (Index on Censorship and Equality and Human Rights Commission - intervening), holding that gender-critical beliefs are protected under the EqA.
Here we look at what this judgment means and also, as the EAT was at pains to point out, what it does not mean. In its judgment, the EAT uses the term transgender to refer to people whose gender identity does not correspond to their sex at birth and who identify with another gender and uses it interchangeably with trans people. This article adopts the same approach.
Religion or belief is a protected characteristic under section 4 of the EqA with section 10 defining "belief" as any religious or philosophical belief, and a reference to belief as including a reference to a lack of belief. Back in 2010, the EAT in Grainger Plc v Nicholson set out the five criteria to be applied in determining whether a belief qualifies for protection ("the Grainger criteria"), namely:
- the belief must be genuinely held;
- it must be a belief and not an opinion or viewpoint based on the present state of information available;
- it must be a belief as to a weighty and substantial aspect of human life and behaviour;
- it must attain a certain level of cogency, seriousness, cohesion and importance; and
- it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
The case of Ms Forstater
CGD Europe (CGDE) is the European arm (based in the UK) of a not-for-profit think tank based in America that focuses on international development. Ms Forstater was a visiting fellow and entered into consultancy agreements with CGDE, the last of which ended on 31 December 2018.
Ms Forstater believes that sex is a material reality that should not be conflated with gender or gender identity. She believes that, while a person can identify as another sex and ask other people to respect that, and can change their legal sex under the Gender Recognition Act 2004 (GRA), this does not change their actual sex.
In September 2018, she engaged in debates on social media about gender identity issues following the 2018 Government consultation on possible reform of the GRA 2004, including a move to self-identification. (In September 2020, the Government announced that it would not introduce self-identification for gender but would make limited changes to the process for obtaining a gender recognition certificate (GRC)).
Ms Forstater's 2018 comments included that while in social situations she would generally seek to be polite to any trans-person using their preferred pro-nouns, her belief is that there are only two sexes, male and female. She acknowledged that "while it may be upsetting to some male people who identify as women to be told that it is not appropriate for them to share female-only services and spaces, avoiding upsetting males is not a reason to compromise women's safety, dignity and ability to control their own boundaries as to who gets to see and touch their bodies." The latter encapsulates the dilemma faced by many organisations of how, in practice, to balance observing the hard-won protections for transgender people with observing the rights of others in the use of spaces such as changing rooms and dormitories.
Some of Ms Forstater's colleagues at work complained that they found her comments offensive, and, following an investigation, her visiting fellowship was not renewed. Ms Forstater presented claims to an employment tribunal claiming, among other things, that her gender-critical views constitute a protected philosophical belief under the EqA 2010 and that she was discriminated against because of them by non-renewal of her contract.
At a preliminary hearing, an employment tribunal concluded that her beliefs did not amount to a philosophical belief that qualified for protection under the EqA as they did not satisfy the fifth Grainger criterion, namely that the belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. It accepted that all the other Grainger criteria were met. Ms Forstater appealed to the EAT.
The judgment of the EAT
The EAT allowed the appeal holding that gender-critical beliefs, including a belief that sex is immutable and should not be conflated with gender identity, are protected under the Equality Act 2010.
The accepted evidence before the tribunal was that Ms Forstater believed that it is not incompatible to recognise that human beings cannot change sex whilst also protecting the human rights of transgender people.
The tribunal had been wrong to find that such beliefs were 'not worthy of respect in a democratic society'. A philosophical belief is only excluded from protection if its expression 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.
In relation to Ms Forstater's gender-critical beliefs, the EAT made the following points in reaching its decision:
Widely held belief
Her beliefs are not unique to her but are widely shared, including amongst respected academics and some transgender people, and did not seek to destroy the rights of trans persons. The EAT noted that the popularity of a belief does not insulate it from being one that undermines the rights of others. However, particular care needs to be taken before a widely shared belief can be condemned as being not worthy of respect in a democratic society.
Beliefs that are considered offensive and abhorrent to some are not excluded from protection simply because they have the potential to result in harassment in some circumstances.
Consistent with the law
The EAT stated that where a belief or a major tenet of it appears to be in accordance with the law of the land, then it is all the more jarring that it should be declared as one not worthy of respect in a democratic society.
A Gender Recognition Certificate (GRC) only imposes recognition of the acquired gender for official legal purposes and contains exceptions, for example acquisition of a new gender does not affect a person's status as a father or a mother of a child. It does not erase memories of a person's pre-GRC gender or impose recognition of the acquired gender in private, non-legal contexts, or compel a person to believe something they do not.
Ms Forstater also put her case on the alternative basis of a lack of belief - as explained above, under s.10 EqA reference to belief includes lack of belief. The Gender identity belief, which she does not believe in, being that everyone has a gender that may be different to their sex at birth and that effectively trumps sex so that transmen are men and transwomen are women. The EAT accepted that the fact that Ms Forstater did not share the gender identity belief was also enough to qualify for protection.
What does and doesn't the judgment mean?
This EAT judgment acknowledges what it refers to as the ongoing public 'transgender debate' between those holding a gender identity belief and those holding a gender critical belief. However, this case is not about whether greater protection ought to be afforded to trans persons under the EqA, the GRA or otherwise. Nor, as an appeal on a preliminary point, does it decide whose rights, if anyone's, were breached in the particular circumstances of Ms Forstater's case - that will be a matter for the final hearing on the merits of her case.
The EAT makes clear that its judgment does not mean:
- that it was expressing any view on the merits of either side of the transgender debate;
- that those with gender-critical beliefs can 'misgender' trans persons with impunity;
- that trans persons do not have protections against discrimination and harassment conferred by the EqA; and
- that employers and service providers will not be able to provide a safe environment for trans persons.
This appeal is about the much narrower issue of whether a belief as to the immutability of sex is one that amounts to a philosophical belief under the EqA. The EAT has concluded that it does. That does not mean, however, that those with gender-critical beliefs can indiscriminately and gratuitously refer to trans persons in terms other than they would wish. Such conduct could, depending on the circumstances, amount to harassment or discrimination. It is the manifestation of a belief that may, depending on the circumstances, be restricted. What was not open to the tribunal was to impose in effect a blanket restriction on a person not to express those views irrespective of those circumstances.
Both those holding a gender identity belief and those holding a gender critical belief are protected under the law.