The Balancing Act of Philosophical Beliefs

In the recent case of Forstater v CGD Europe and others ET/22200909/2019 a tribunal found that “gender critical” beliefs are protected “philosophical beliefs” for equality law purposes and found that Ms Forstater (the Claimant) had suffered direct discrimination when the Respondent declined to renew her contract because of her expression of gender critical beliefs.

Background

Ms Forstater’s gender critical beliefs encompassed the idea that a person’s sex is a material reality that should not be conflated with gender or gender identity. She believes that a person’s sex is an absolute biological fact, not a feeling or an identity, and that a trans woman is not in reality a woman. She believes that, while a person can identify as another sex and ask other people to go along with it and can change their legal sex under the Gender Recognition Act 2004 (GRA), this does not change their actual sex.

Ms Forstater regularly expressed these views on Twitter. In 2018, employees of CGD complained on the basis that they were offended by the tweets and in their opinion, they also posed a reputational risk to CGD. Following receipt of the complaints, CGD decided not to renew Ms Forstater’s visiting fellowship, and also failed to offer her a contract of employment.

Ms Forstater brought an Employment Tribunal claim on the grounds that her contract was not renewed because of her gender critical beliefs, and that this amounted to direct belief discrimination.

This naturally raised difficult and complex issues for employers seeking to balance employees’ rights to hold a philosophical belief and not be discriminated against, against other employees’ rights not to be harassed or discriminated against because of their protected characteristic.

The Legal Position

The Equality Act prohibits discrimination where it relates to one or more the nine “protected characteristics”. “Religion or belief” is a protected characteristic, which means it is unlawful to discriminate because of an individual’s belief. To qualify as a “philosophical belief” under s.10 of the Equality Act, the belief must satisfy the five criteria set out in another case. These are that:

1. The belief must be genuinely held;
2. Be a belief and not an opinion or viewpoint based on the present state of information available;
3. Be a belief as to a weighty and substantial aspect of human life and behaviour;
4. It must attain a certain level of cogency, seriousness, cohesion and importance; and
5. 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 Employment Tribunal (ET) decision

The original ET held that Ms Forstater’s belief was ‘not worthy of respect in a democratic society’ because it was ‘absolutist’ in nature and because 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’.

Consequently, the ET held that Ms Forstater’s belief ‘harms the rights of others’ because it amounted to a ‘refusal to accept the full effect of a Gender Recognition Certificate’ under the GRA and could cause ‘harassment to trans women by insisting they are men and trans men by insisting they are women’. As a result, the Tribunal held that the ‘human rights balancing approach goes against the Claimant’.

Ms Forstater appealed the decision.

The Employment Appeal Tribunal (EAT) decision

In the appeal, it was held that the ET had erred in its application of the fifth criteria and that a philosophical belief would only fail to satisfy the fifth criteria “if it was the kind of belief of which would be akin to Nazism or totalitarianism”. Therefore, Ms Forstater’s belief had not failed to qualify as a philosophical belief.

The EAT explained that s10 of the Equality Act, must be interpreted in accordance with Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression) of the European Convention on Human Rights (ECHR). Which both provide for a lower threshold for establishing that a belief is worthy of respect in a democratic society.

A philosophical belief would only be excluded from the scope of protection if it was a grave violation of ECHR principles, seeking to destroy those rights.

Just because Ms Forstater’s beliefs might well be considered offensive and abhorrent to some and might in some circumstances cause offence to trans persons, the potential for offence cannot be a reason to exclude a belief from protection altogether. Additionally, her beliefs are widely shared, included by respected academics – and a widely-shared belief demands particular care before it can be condemned as being not worthy of respect in a democratic society. Moreover, Ms Forstater’s belief that sex is immutable and binary is consistent with the law, a fact recognised by the tribunal.

What does this mean for employers?

Essentially this decision gives gender-critical beliefs the same legal protections as religious, environmental and ethical veganism philosophical beliefs. Therefore, anyone sharing these protected characteristics are protected from unlawful discrimination and harassment.

This decision seeks to protect against gratuitous use of language in the workplace which someone in either group might reasonably find offensive; for example, calling someone with gender critical beliefs a ‘terf’ or a ‘bigot’, or not using a trans person’s preferred pronouns for no good reason. This behaviour could then amount to unlawful harassment or discrimination. However, it’s unlikely that respectful discussion or debate will be unlawful.

It’s also important to note that the EAT decision will not only protect gender critical beliefs but it should also protect trans people in most circumstances through other protected characteristics.

It’s clear that the EAT have sought to emphasise the need for tolerance and mutual respect, even if differing groups find each other’s beliefs offensive. Employers should be mindful to create a fair and balanced culture, allowing freedom of speech whilst ensuring a workplace that is safe from discrimination and harassment. Ms Forstater’s case emphasises the importance of the way in which employees manifest their views – if this is done in a manner which is deliberately upsetting or provocative, it should not be afforded tolerance.
Employers should accentuate this within their workforce, creating a diverse, safe and accepting environment for people to work in. Ideally, employers should review their policies and handbooks whilst also providing training and relevant education programmes.