Is a belief that there are only two biological sexes in human beings, and that it is impossible for a human being literally to change sex, a ‘philosophical belief’ within the meaning of s10 Equality Act 2010?
Yes, held the EAT in Forstater v CGD Europe & ors, Index On Censorship and EHRC intervening.
Ms Forstater worked for CGD. In 2018, she became engaged in the debate about proposed reforms to the Gender Recognition Act. Complaints were raised with CGD that some of her tweets were 'transphobic'. Her contract was not renewed, and she complained of discrimination on grounds of belief.
Considering the fifth of the ‘Grainger criteria’ (which determine whether a belief is protected under s10 EqA) the judge found that Ms Forstater’s belief necessarily involved “misgendering” and was incompatible with human dignity and the fundamental rights of others.
The Employment Appeal Tribunal disagreed. The evidence was that Ms Forstater’s belief is widely shared, and consistent with the law. The tribunal was wrong to assume that her belief meant she would always ‘misgender’ trans persons, irrespective of circumstances; her position was more nuanced than that. Her belief passed the ‘Grainger V’ test, and the EAT, when explaining the scope of Grainger V, stated:-
"79. In our judgment, it is important that in applying Grainger V, 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. 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."
The EAT emphasised that its judgment did not mean that it was taking sides in ‘the transgender debate’, or that any of the existing protections for people with the protected characteristic of gender reassignment under the EqA were in any way undermined.
Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary.