The belief that a person’s biological sex cannot be changed is a protected philosophical belief
Details
The Employment Appeal Tribunal (EAT) has today given its decision in the widely publicised Maya Forstater case. The EAT has held that holding gender-critical beliefs – that is the belief that biological sex cannot be changed – is a protected philosophical belief.
Legal background
Workers are protected from discrimination based on religion and philosophical belief (or lack thereof) within the employment sphere.
Case law has established that, to be protected, a philosophical belief:
- must be genuinely held
- must not simply be an opinion or viewpoint based on information currently available
- must concern a weighty and substantial aspect of human life and behaviour
- must also attain a certain level of cogency, seriousness, cohesion and importance
- must be worthy of respect in a democratic society
- must be compatible with human dignity and not conflict with the fundamental rights of others.
Factual background
Maya Forstater (MF), who worked as a consultant for the Center For Global Development, contended that her consultancy relationship ended because she had expressed gender-critical opinions. In particular, MF had tweeted that she opposed government proposals to reform the Gender Recognition Act (which would allow people to self-identify as the opposite sex) and tweeted that “men cannot change into women”. The legislative proposals in question have since been largely abandoned by the current government. MF brought a claim relying on her philosophical belief that holding gender-critical beliefs – that biological sex cannot be changed – amounted to a protected philosophical belief
The employment tribunal (ET) held a preliminary hearing to determine if MF’s belief was a protected philosophical belief. MF explained her belief that “‘sex’ is a material reality which should not be conflated with ‘gender’ or ‘gender identity’. Being female is an immutable biological fact, not a feeling or an identity…” The ET held that MF’s beliefs were not a protected philosophical belief. The ET accepted that MF’s beliefs were genuinely held, amounted to more than an opinion or viewpoint based on the present state of information available and related to substantial aspects of human life and behaviour. The ET went on to hold that MF’s belief had attained a certain level of cogency, seriousness, cohesion and importance (recognising that it is still one largely adopted by the law, which still treats sex as binary as defined on a birth certificate until there is a gender recognition certificate). However, the ET ultimately held that MF’s belief was, in its absolutist nature, not worthy of respect in a democratic society, incompatible with human dignity and the fundamental rights of others.
MF appealed and the Equality and Human Rights Commission intervened in the appeal.
EAT decision
There were two main issues for the EAT:
- Is a ‘gender critical’ belief, that sex is biological and cannot be changed, a protected philosophical belief?
- Did the ET, when it determined this question, incorrectly conflate the question of whether a belief is protected with the question of whether the way that the belief was manifested is protected?
The EAT upheld the appeal on the basis that the ET had erred in its application of the law.
A philosophical belief would only be considered as not being worthy of respect in a democratic society (and thus excluded from protection) if it was the kind of belief the expression of which would be akin to Nazism or totalitarianism. MF’s gender-critical beliefs, which were widely shared by others, and which did not seek to destroy the rights of trans persons, clearly did not fall into that category. MF’s belief, while offensive to some, fell within the protection under Article 9(1) of the ECHR and therefore within s.10, Equality Act 2010.
However, the EAT expressly noted in its judgment that its decision does not mean:
- that the EAT has expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing
- that those with gender-critical beliefs can ‘misgender’ trans persons with impunity; they continue to be subject to the prohibitions on discrimination and harassment that apply to everyone, and whether or not conduct in a given situation does amount to harassment or discrimination will be for an employment tribunal to determine in any given case
- that trans persons do not qualify for the protections against discrimination and harassment. Some trans persons will satisfy the definition of gender reassignment under the Equality Act 2010 and others may be able to rely on other protected characteristics
- that employers and service providers will not be able to provide a safe environment for trans persons. Employers would continue to be liable (subject to any ‘reasonable steps’ defence) for acts of harassment and discrimination against trans persons committed in the course of employment
What does this mean for employers?
Those who hold gender critical beliefs – that is the belief that biological sex cannot be changed – will be considered to hold a protected philosophical belief and therefore protected from discrimination based on that belief.
However, this does not mean that the manifestation of that belief (i.e. actions or comments made based on that belief) is entirely free from consequences. The employer will need to take care to strike a balance between the rights of the worker to hold that belief, and the rights of the trans individual not to be discriminated against.
