Gender Critical Belief Was A "Philosophical Belief"

• Published date: 06 July 2021
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employment Litigation/ Tribunals
• Law Firm: Trowers & Hamlins
• Author: Ms Emma Burrows and Nicola Ihnatowicz

The Employment Appeal Tribunal (EAT) has held in Forstater v CGD Europe and others that the claimant's gender critical belief was a philosophical belief qualifying for protection under the Equality Act 2010.

The claimant was a visiting fellow of a not-for-profit think tank focussing on international development. She believes that a person's sex is a material reality that should not be conflated with gender or gender identity, that being female is an immutable biological fact, not a feeling or an identity, and that a trans woman is not in reality a woman. She also 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. She engaged in debates on social media about gender identity issues, and made some remarks which some trans people found offensive. Following an investigation her visiting fellowship was not renewed. She brought a claim for discrimination on the grounds of her philosophical belief.

At a preliminary hearing, a tribunal concluded that the claimant's beliefs did not amount to a philosophical belief that qualified for protection as they did not satisfy one of the criterion set out in Grainger plc and others v Nicholson, namely that the belief 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 EAT uphold the claimant's appeal and remitted the case to a freshly constituted tribunal to determine whether the claimant had suffered discrimination as a result of her belief.

The EAT noted that freedom of expression is one of the essential foundations of democratic society, which cannot exist without pluralism, tolerance and broadmindedness. It concluded that it is not for the court to inquire into the validity of a belief, and a belief only needs to satisfy a very modest threshold to be protected under Article 9 (which protects the right to freedom of thought, conscience and belief).

In coming to its conclusion the EAT looked at whether a person falls outside the scope of protection under Articles 9 and 10 (freedom of expression) by virtue of Article 17 (which prohibits the abuse of Convention rights to engage in any activity aimed at the destruction of the rights and freedoms of others). Case law has held that Article 17 only excludes the "gravest forms of hate speech" which incite...