On 10 June 2021, the Employment Appeal Tribunal (EAT) handed down judgment in Forstater v CGD Europe and others UKEAT/0105/20/JOJ
. The case, which has generated heated debate, concerned what are known as gender-critical beliefs and in particular whether the claimant’s belief (and a related lack of belief) was protected by the Equality Act (EA) 2010.
As the EAT judgment sets out, the claimant held the belief that biological sex is real, important, immutable and not to be conflated with gender identity. She considered that statements such as ‘woman means adult human female’ or ‘trans women are male’ were statements of neutral fact and not expressions of antipathy towards trans people, or ‘transphobic’ (see para 1).
The claimant was engaged as a visiting fellow of CGD Europe and carried out paid consultancy work on specific projects. Some of her colleagues found her statements on Twitter offensive and complained. When her consultancy contract was not renewed, she brought proceedings before the Central London Employment Tribunal on the basis that, among other claims, she had been discriminated against because of her belief.
After a six-day preliminary hearing, the tribunal concluded that the claimant’s belief, having regard to its ‘absolutist’ nature, whereby she would ‘refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment’, was one that was ‘not worthy of respect in a democratic society’ (per Grainger Plc and others v Nicholson UKEAT/0219/09/ZT
; May 2010 Legal Action
11 (Grainger V
)) (see EAT judgment, para 1). Accordingly, the judge found that the claimant’s belief was not a ‘philosophical belief’ within the meaning of EA 2010 s10. The tribunal also held that the claimant’s lack of belief in gender identity theory – which was an alternative basis on which she put her case – was not protected because that lack of belief necessarily entailed her positive gender-critical belief, and was therefore also excluded by Grainger V
The claimant appealed to the EAT. The sole issue in the appeal was whether the tribunal had erred in law in reaching that conclusion. The EAT upheld the appeal on the following bases:
EA 2010 s10 must be read in accordance with articles 9 and 10 of the European Convention on Human Rights
(ECHR), and a belief need only satisfy very modest threshold requirements.
•It is only those beliefs that would be an affront to ECHR principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, even those that constitute less grave forms of hate speech, will not be excluded from protection (although their manifestation may, depending on the circumstances, be justifiably restricted under article 9(2) and/or article 10(2)).
A tribunal should consider whether the belief meets the threshold requirements in general. While manifestation may be relevant (for example, to cogency), the focus should be on the belief in general and not any particular manifestation or expression of it. Dicta of Choudhury J to the contrary in Gray v Mulberry Company (Design) Ltd UKEAT/0040/17/DA
is no longer to be regarded as correct.
•Expressing gender-critical views will not necessarily constitute harassment – it is a highly fact-sensitive question.
•The Gender Recognition Act 2004 sets out the basis upon which there is legal recognition of a change of sex. It does not compel someone to believe something that they do not, ie, the claimant’s belief that a woman is a natal woman.
•The tribunal failed to apply the correct test as set out in Grainger V, failed to remain neutral and reached an incorrect conclusion.
The only conclusion that the tribunal should have reached was that the claimant’s belief was protected. As to lack of belief, the tribunal was wrong to hold that lack of belief necessarily entails holding a positive opposing belief. Those who lack a particular belief include both those who hold a positive opposing belief and those who do not have any view on the issue, whether through indifference, indecision or otherwise.
The EAT was at pains to point out that the judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans people with impunity, stating that the claimant will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else. Those who are trans continue to have the protection of the EA 2010 on the basis of the gender reassignment protected characteristic and potentially on the basis of belief – that gender identify is paramount – sex, or disability (gender dysphoria/gender identity disorder) (para 118).