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Case Law Update: Philosophical beliefs

Napthens - July 6th 2021

Background

In the case of Forstater v CGD Europe & Other the Claimant worked for CGD as a researcher and writer. In 2018, she became engaged in a debate on Twitter about proposed reforms to the Gender Recognition Act. Complaints were raised by her colleagues that some of her tweets were 'transphobic' and made them feel uncomfortable. Following the complaints, the Claimant’s contract was not renewed, and she complained of discrimination on grounds of belief, as she believed the Respondents refusal to re-engage was a direct consequence of her opinions on gender.

The Claimant holds the belief that there are only two genders and that there is no possibility to ever change sex, or any possibility of any sex in between the two. The Claimant did not accept that a trans women is a woman and made statements such as ‘woman means adult human female’ and ‘trans women are male’.

Legal Considerations

To qualify as a philosophical belief under s. 10 of the Equality Act 2010, the belief must satisfy the five criteria as set out in the case of Grainger v Nicholson:

  1. the belief must be genuinely held;
  2. it must be a belief and not an opinion or viewpoint based on the present state of information available;
  3. it must 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.

Outcome

The Employment Tribunal ruled against the Claimant and found that that it was not a philosophical belief as it was incompatible with human dignity and the fundamental rights of others. The ET also stated that her views failed on the last requirement of the test as they were ‘not worthy of respect in a democratic society’. The Claimant appealed against the decision and the appeal was allowed.

The Employment Appeal Tribunal disagreed with the decision of the Employment Tribunal and believed that it had erred in its application of the Grainger test. The EAT found that the Claimant held a philosophical belief and therefore fell within s.10 of the Equality Act 2010.

The EAT accepted that the Claimant’s beliefs may be considered offensive to some and would potentially cause offence to trans persons, but potential for offence was not a reason to exclude a belief from protection. In addition, the EAT stated that a philosophical belief would only fail to be protected if it were the kind of belief such as ‘advocating Nazism or pursing totalitarianism’ or ‘or espousing hatred and violence in the gravest of form’ and that the Claimant’s views were nowhere near this kind of belief. The EAT found that the Claimant’s belief is widely shared, and her view that there are two genders, and that sex is binary was consistent with the law.

The EAT emphasised that its judgment did not mean that the existing protections for people with the protected characteristic of gender reassignment under the Equality Act were in any way destroyed and instead stated that it had ‘not expressed a view on either side of the debate’ as it was not for the EAT to decide which belief is more acceptable.

Comment

The case means that individuals are entitled not to be discriminated against because of their gender critical beliefs, which are similar to those of the Claimant. Therefore, the judgement creates a potential conflict between trans persons who are protected under the Equality Act and those who are protected due to their gender critical beliefs. However, if the expression of such beliefs crosses the line from belief to harassment and/or bullying, then it would most likely be found in the favour of the victim. It is therefore important employers manage conflict fairly within the workplace and respect each individuals’ rights under the Equality Act.