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Employment Appeal Tribunal rules in controversial case of Forstater v CGD Europe & ors.

The Employment Appeal Tribunal has held that a belief that there are only two biological sexes (and that it is impossible to change sex) can be a philosophical belief within s10 of the Equality Act 2010.

Background

The Claimant engaged in debates on social media about gender identity arguing that it should not be conflated with biological sex. She made comments such as “woman means adult human female” and “trans women are male”. Some of the Claimant’s colleagues complained to their employer and an internal investigation ensued. The result was that the Claimant was not offered further consultancy work and her fellowship was not renewed. The Claimant made a complaint that she was being discriminated against because of her belief.

A preliminary hearing was held by the Employment Tribunal to determine if this belief could amount to a philosophical belief within the meaning of s10 of the Equality Act 2010. The tribunal commented that the Claimant’s view was “not worthy of respect in a democratic society” and held that the Claimant’s belief did not fall within the meaning of philosophical belief, as it failed to satisfy the fifth criterion in Grainger plc v Nicholson [2010] ICR 360 (“Grainger”).

The five criteria of Grainger are:

  1. The belief must be genuinely held;
  2. The belief must not simply be an opinion or viewpoint based on the present state of information available;
  3. The belief must concern a weighty and substantial aspect of human life and behaviour;
  4. The belief must attain a certain level of cogency, seriousness, cohesion and importance; and
  5. The belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not be in conflict with the fundamental rights of others.

The Claimant appealed.

Decision

The Employment Appeal Tribunal (EAT) allowed the appeal and held that the original tribunal had erred in law.

In particular it considered what standard a court should apply in determining whether a belief falls foul of the threshold in criterion 5 of Grainger. The EAT decided that in order to exclude the protection of the European Convention of Human Rights, a tribunal would have had to be satisfied that the belief in question gave rise to the gravest form of hate speech, was inciting violence or was as antithetical to Convention principles as Nazism or totalitarianism. The EAT commented that the original tribunal appeared to be straying into an evaluation of the Claimant’s belief and that this is was an error.

The EAT concluded that the Claimant’s belief as to the immutability of sex amounted to a philosophical belief under s10 of the Equality Act 2010.

Impact

This is a significant decision and highlights the broad range of beliefs that s10 of the Equality Act 2010 protect.

The EAT acknowledged that some people will be disappointed by the decision and emphasised the decision does not mean:

  • That it has expressed views on either side;
  • That those with gender-critical beliefs can misgender transgender people with impunity;
  • That transgender people do not have protections against discrimination and harassment; and
  • That employers will not be able to provide a safe environment for transgender people.

If you would like to know more about our Employment law services, please contact Charles Avens, Toby Stroh or Sophie Allen at:

  • Charles Avens at c.avens@druces.com or on +44 (0)20 7216 5568
  • Toby Stroh at t.stroh@druces.com or on +44 (0)20 7216 5564
  • Sophie Allen at s.allen@druces.com or on +44 (0)20 7216 5535
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