Belief in only 2 sexes, and that an individual cannot change their sex is protected

I have previously discussed this case in articles discussing the protections afforded to non-binary individuals.

To give the background on this matter, Maya Forstater was a consultant for CGD until the agreement ended in December 2018 and was not renewed. Prior to this, Ms Forstater had become heavily active on social media in the debate about proposed reforms to the Gender Recognition Act. A number of complaints were raised with CGD that her tweets were transphobic. When her contract was not renewed, Ms Forstater brought a claim against CGD on the grounds that she was discriminated against because of a philosophical belief. The belief in question was that “sex is a material reality that should not be conflated with gender or gender identity.” As such, she was of the opinion that trans-women were not women, and trans-men were not men.

As I have previously discussed, a person's sex is biological (male, female, and intersex) whereas gender is a social construct which is better understood as a spectrum relating to traditional roles. Ms Forstater gained a lot of traction online, especially after Harry Potter author, J.K. Rowling announced her support for Ms Forstater on Twitter.

At the employment tribunal, Ms Forstater was unsuccessful. The key test for determining whether a philosophical belief is protected under the Equality Act is referred to as the Grainger criteria, after a previous case. This states that a belief must be:

1. genuinely held;
2. a belief and not an opinion or viewpoint based on the present state of information available;
3. a belief as to a weighty and substantial aspect of human life and behaviour;
4. attain a certain level of cogency, seriousness, cohesion and importance; and
5. worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

In the employment tribunal, Ms Forstater’s belief succeeded on all counts but the last. The Tribunal found that Ms Forstater’s belief was absolutist and could involve her deliberately misgendering individuals, “even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment”. As such, it was incompatible with human dignity.

Ms Forstater has now appealed to the EAT and been successful. The reason that the ET’s judgment has been overturned was stated as “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. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection. However, the manifestation of such beliefs may, depending on circumstances, justifiably be restricted under Article 9(2) or Article 10(2) as the case may be."

As such, Ms Forstater’s beliefs, offensive as they may be, are not so grave as to fall outside of the protection of the Equality Act. Nevertheless, this is not the be-all and end-all of this matter. Ms Forstater has successfully shown that her belief is a philosophical belief, but this case is now being remitted to the tribunal to determine whether Ms Forstater was discriminated against as a result of her belief.

Whilst the decision in this case may come as a huge disappointment to many, please note that this does not mean that those with gender-critical beliefs can ‘misgender’ trans individuals without repercussions, nor does it limit the protection that trans individuals have against discrimination or harassment, a fact pointed out by the EAT in their judgment, which set out four statements to ensure a clear message in light of their decision:

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.”
3. “This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA. They do.”
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 continue to be liable…for acts of harassment and discrimination against trans persons committed in the course of employment.”

What does this mean for you or your business, and what should you be doing now?

The obvious takeaway is that you should now be aware that gender-critical beliefs are protected, so you cannot discriminate against individuals because they hold those beliefs. Nevertheless, this is not pitting one group against another, and it does not lessen the protection of trans individuals – someone with gender critical beliefs cannot express those in such a way as to discriminate against trans people. The change is that referring to an individual with those beliefs as a ‘TERF’ (Trans-Exclusionary Radical Feminist) or ‘bigot’ would discriminate against the gender-critical person.

That being said, it may mean that statements opining gender critical views are less likely to be categorised as transphobic – we are likely to see a more nuanced approach, in keeping with the law on harassment, which looks at the facts and context behind the actions.

Recommended Reading

Please read my article from February discussing non-binary individuals protection under the Equality Act here.

A link to the recent judgment in this case can be found here.

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.