Are gender critical views capable of amounting to a philosophical belief? Yes, decided the Employment Appeal Tribunal (EAT) in Forstater v CGD Europe UKEAT/0105/20. Religion or belief is a protected characteristic, in accordance with Section 10 of the Equality Act 2010, and Tribunals must apply five criteria (known as the Grainger criteria) when establishing whether a belief is capable of protection:
- the belief must be genuinely held
- it must be a belief, 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
- 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 claimant was working as consultant fellow with the respondent, and the claimant holds gender-critical beliefs, which include the belief that biological sex is unable to be changed and not to be conflated with gender identity.
The claimant engaged in debates online about her beliefs and colleagues found her comments offensive. Her consultancy with the respondent was not renewed and she alleged this amounted to discrimination as her views amount to a “philosophical belief”.
She alleged this amounted to discrimination as her views amount to a 'philosophical belief'
The Employment Tribunal found against her on the basis her beliefs did not satisfy point five of the Grainger criteria i.e. they were not worthy of respect in a democratic society. The claimant appealed, and her appeal was successful.
The EAT concluded: “In our judgment, it is important that in applying Grainger, tribunals bear in mind 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.”
This is an important decision, but it does not mean that trans people are not protected under the Equality Act 2010. The EAT pointed out that it does not mean those with gender critical views can misgender trans people with impunity and it does not mean that employers will not be able to provide a safe environment for trans people. It does, however, demonstrate the extremity of beliefs that will be excluded from amounting to a belief with reference to the Equality Act.
Joanne Galbraith-Marten
Head of Legal (Employment)
