The belief that ‘sex is immutable and should not be conflated with gender identity’ held to be a philosophical belief for the purposes of the Equality Act 2010.

The recent Employment Appeals Tribunal (EAT) case of Forstater v CGD Europe and others it was held that the belief that “sex is immutable and should not be conflated with gender identity” is a philosophical belief protect by the Equality Act 2010. It did not fall under the exclusion where it conflicts with the human rights of others that is was not “worthy of respect in a democratic society”, as this was reserved for beliefs that were akin to Nazism or totalitarianism.

Case Facts

Forstater was a ‘visiting fellow’ at CGD and was contracted for services with CGD via consultancy agreements. Forstater’s last date of service with CGD was 31 December 2018 after CGD decided not to renew the contract following an investigation into Forstater’s conduct. Forstater argued that the reason why CGD did not renew the consultancy agreement was due to the fact that Forstater had posted on social media that she believed that sex is immutable and should not be conflated with gender identity. She engaged on social media about this topic and some colleagues at CGD found these comments and beliefs to be offensive and trans-phobic.

Forstater brought a claim of direct discrimination and harassment on the grounds of having a protected philosophical belief and being treated less favourably because of this belief.

ET Decision

At a preliminary hearing, the ET used the test in Grainger to conclude whether Forstater’s beliefs were philosophical and therefore protected by the Equality Act 2010 (EqA). The test is:

• (i)  The belief must be genuinely held.
• (ii)  It must be a belief and not, an opinion or viewpoint based on the present state of information available.
• (iii)  It must be a belief as to a weighty and substantial aspect of human life and behaviour.
• (iv)  It must attain a certain level of cogency, seriousness, cohesion and importance.
• (v)  It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

The ET held that Forstater’s beliefs satisfied all the above limbs of the test except for the fifth one, and deemed it not to be worthy of respect in a democratic society as Forstater upheld this belief and would refer to someone by the sex she deems appropriate despite if it “violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment.” Therefore, Forstater did not have a philosophical belief protected by EqA.

Forstater appealed this decision.

EAT – appeal allowed

The EAT allowed the appeal and held that Forstater’s belief did in fact fulfil the fifth limb of the Grainger test, it would only be unworthy of respect in a democratic society where the belief was akin to Nazism or totalitarianism. The EAT held that Forstater’s belief was neither; they were beliefs that were widely shared and did not seek to destroy the rights of trans people, so it was held to be philosophical and afforded the protected from EqA.

Implications and wording of policies

It is important to note that the judgment in Forstater does not mean that trans people have any less rights, and it is crucial that employers still have measures in place to ensure that trans people are not discriminated against. Where there is mis-gendering and purposeful discrimination/harassment with intent to cause harm, it is important that employers deal with this in the usual way.