EAT Finds Gender Critical Belief is Protected Under the Equality Act

Published June 14 2021

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In a decision which has generated a lot of interest the Employment Appeal Tribunal (EAT) has held that gender critical beliefs, which include the belief that biological sex is real, important, immutable and not to be conflated with gender identity, are protected under the Equality Act as a philosophical belief.

The EAT in its judgement was careful to emphasise that its decision 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 Equality Act were in any way undermined.

It’s important that employers are aware of the case of Forstater v CGD Europe & Ors to help ensure that all employees are treated appropriately.

The Facts of the Case

Maya Forstater is a writer, researcher and adviser on sustainable development and held a contract as a visiting fellow with CGD Europe. She holds gender-critical beliefs, which include the belief that sex is immutable and not to be conflated with gender identity. She engaged in debates on social media (generally on her personal Twitter account) about gender identity issues. Some of her colleagues raised concerns over some of her Tweets alleging that they were “transphobic”, “exclusionary” or “offensive” and were making them feel uncomfortable. Following an investigation, her visiting fellowship was not renewed. Ms Forstater complained to an employment tribunal alleging that she was discriminated against / harassed because of her gender critical beliefs.

There was an initial hearing to determine whether her beliefs were a protected philosophical belief under the Equality Act. To qualify as a protected philosophical belief a number of requirements need to be met. The Tribunal held that one requirement was not met – the belief was ‘not worthy of respect in a democratic society’, this was because it was ‘absolutist’ in nature and so wasn’t protected.

Ms Forstater appealed. The EAT held the tribunal was wrong to assume that her beliefs meant she would always ‘misgender’ trans persons, irrespective of circumstances – Ms Forstater’s position was more nuanced than that and ‘context dependent’. Furthermore, a philosophical belief would only fail on the particular hurdle of not being worthy of respect in a democratic society if it was the kind of belief akin to Nazism or totalitarianism and Ms Forstater’s gender-critical beliefs, which were widely shared, and which did not seek to destroy the rights of trans persons, clearly did not fall into that category. They were a protected philosophical belief.

The case will now go back to an employment tribunal to determine Ms Forstater’s claims.

Kingfisher’s Advice

It’s important to be aware that the EAT was careful to state that:

  • “This judgement does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The claimant in the case, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of Equality Act will be for a tribunal to determine in a given case”.
  • “This judgement does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA. They do.”
  • “This judgement does not mean that employers will not be able to provide a safe environment for trans persons. Employers would continue to be liable (subject to any statutory defence) for acts of harassment and discrimination against trans persons committed in the course of employment.”

It’s important for employers to ensure that all employees are treated lawfully and with dignity and respect in the workplace.

If you have an employment law matter you would like assistance with, please do not hesitate to contact Kingfisher Professional Services Ltd for advice on the facts of your case.