Forstater v CGD Europe and Others UKEAT/0105/20

The issues around sex and gender are complex and nuanced but in recent years it has seemed as if holding the belief that sex (as opposed to gender identity) is immutable was akin to holding a belief that black people are inherently less intelligent than white or that women are intrinsically less capable of holding positions of power than men. Stonewall, the charitable organisation which was founded to promote equality for gay and lesbian individuals decided to take on the mantle of trans rights and to infiltrate organisations in terms of re-educating them as to its notions of what is and what is not unlawful discrimination – seemingly without any regard for the legislation around equality in the UK as enshrined in the Equality Act 2010 (EqA 2010). It went further than that, in fact, and made clear that anyone who subscribes to the view that biological sex is fixed is de facto trans-phobic and should therefore be disciplined/cancelled/treated with contempt and without their belief having any right to protection afforded to those with other beliefs under UK law.

The purpose of this article, following the recent EAT judgment in Forstater v CGD Europe and Others, is to make clear what is and what is not lawful and how employers should, therefore, balance the rights of people with different protected characteristics – specifically balancing the rights of trans-individuals with the rights of individuals who hold gender critical beliefs.

In the afore-mentioned case, Ms Forstater worked as a “visiting fellow” for CGD Europe (a not-for-profit think tank based in America that focuses on international development). Ms Forstater believes that sex is immutable and that, whilst a person may have a gender identity which differs from their sex, nothing, as a matter of biological fact, can lead to that person actually changing sex. She engaged in public debate around this issue on social media and a number of people found Ms Forstaters comments to be offensive and reported her to CGD. Following an investigation, her visiting fellowship was not renewed.

Ms Forstater issued tribunal proceedings and claimed, amongst other things, that her gender-critical beliefs constituted a protected “philosophical belief” under section 10 of the Eqa 2010 which was important for the protection of women and therefore that the non-renewal of her fellowship amounted to an unlawful detriment.

The employment tribunal found that Ms Forstater’s belief was not a protected philosophical belief as it was not a belief which was worthy of respect in a democratic society due to it being incompatible with human dignity and conflicting with the rights of others. Therefore, whilst the tribunal accepted that there is a right to freedom of expression, it said that right is qualified and as such beliefs are not protected if their expression involves violating others’ dignity or creates and intimidating, hostile, degrading, humiliating or offensive environment for them.

The tribunal, in its judgment, expressed its own views about Ms Forstater’s beliefs and argued that her belief was not supported by scientific evidence, which the EAT held it should not have done. Whether or not there is any scientific evidence to support a belief is not the basis upon which a belief is or is not protected. Religious belief is not based on science yet is religion is, after all, a protected characteristic.

Ms Forstater put forward an alternative claim based on her lack of belief that gender identity should trump biological sex or that trans-men are men and trans-women are women. The tribunal held that

a lack of belief would only be protected if the lack of belief (and not the belief itself) was religious or philosophical in nature. In this case, the lack of belief held by Ms Forstater, it said, involved a belief that transwomen are men which is a belief which is incompatible with human dignity.

On appeal, the EAT held that Ms Forstater’s belief was a protected philosophical belief under section 10 of the EqA 2010.

In summary the EAT noted:

  1. Freedom of expression is one of the essential foundations of democratic society, which cannot exist without pluralism, tolerance and broadmindedness.
  2. The State must remain neutral as between competing beliefs when determining whether a belief is one which is protected. The tribunal was wrong to come to its conclusion based on its own beliefs about sex and gender.
  3. Lack of belief need not be “religious or philosophical”.
  4. Whether a belief is “worthy of respect in a democratic society” is determined by reference to whether the belief results in the person holding those beliefs engaging in an activity aimed at the destruction of the rights and freedoms of others and not on whether they can or do cause other people offense. The EAT held that Ms Forstater’s beliefs did not seek to destroy the rights of trans persons and therefore did not fall into a category of beliefs excluded from protection under Article 17 of the European Convention of Human Rights (ECHR).
  5. The belief that sex is immutable and binary is consistent with the common law of this country and where a belief or a major tenet of it appears to be in accordance with the law of the land, then it is inconsistent with it also being declared as one not worthy of respect in a democratic society.
  6. A gender recognition certificate (GRC) itself provides for certain exceptions where, as a matter of law, a person’s gender is not to be treated as the acquired gender.

The EAT made clear, however, that it was not expressing any view on the merits of either side of the transgender debate. It also went on to state that the judgment did not mean that those with gender-critical beliefs should be allowed to mis-gender people with impunity and, importantly, it did not mean that trans persons are not afforded protection against discrimination and harassment conferred by the EqA 2010.

This is an extremely important judgment and employers, service providers, landlords, educational bodies, trade unions and other associations must now ensure that any stance they have taken on discussion of trans rights or any diversity training they may have given to staff does not give rise to potential discrimination against existing or prospective staff on their gender critical beliefs. Diversity training and the provision of protections for trans-people must not be done in a way that leads to people with gender-critical beliefs being subjected to any detriments. The use of pejorative terms such as “TERF” (trans exclusionary radical feminist) or even “transphobe” to describe those holding gender critical views could now, in certain circumstances, amount to unlawful harassment.

Any organisation which has implemented diversity training for its staff may want to revisit that training in light of this judgment. Staff handbooks which make reference to trans rights may also need to be revised.