In a decision handed down on June 10, 2021, the Employment Appeals Tribunal (EAT) in England and Wales held that a worker’s gender-critical beliefs toward transgender people are protected as a philosophical belief under section 10 of the Equality Act 2010. Consequently, firing an employee for having gender-critical beliefs could be discriminatory against the worker.
The plaintiff in this case holds the gender-critical belief that sex is immutable and should not be conflated with gender identity, and that statements such as “woman means adult human female” and “trans women are male” are statements of fact and not transphobic. The plaintiff engaged in debates on social media regarding gender identity, and some of the plaintiff’s work colleagues found the statements she made in those debates to be offensive, which ultimately led to the plaintiff’s consultancy contract not being renewed by CGD Europe. (Decision ¶ 1.)
After the plaintiff’s contract was not renewed, the plaintiff brought proceedings against CGD Europe in the Central London Employment Tribunal (the tribunal) on the grounds that she had been discriminated against because of her beliefs. (¶ 1.) The tribunal ruled in Forstater v. CGD Europe & Ors in 2019 that the plaintiff’s belief, having regard to its “absolutist” nature, whereby the plaintiff would “refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates and intimidating, hostile, degrading, or offensive environment” was not “worthy of respect in a democratic society,” and did not satisfy the criteria set out in Grainger plc & Ors v. Nicholson  ICR at 24, which determines whether a belief qualifies for protection under section 10 of the Equality Act 2010. Further, the tribunal held that the plaintiff’s belief was not a philosophical belief protected by section 10 of the Equality Act. The issue for the EAT was whether the tribunal erred in law in reaching that conclusion. (¶ 1.)
The plaintiff argued before the EAT that her beliefs “do not deny the rights or status of trans persons” and that her beliefs are “widely shared in society including … by some trans persons.” (¶ 29.) Additionally, the plaintiff argued that her beliefs cannot be inherently transphobic and that the tribunal’s judgment has the effect of requiring the plaintiff to “subordinate her language to reflect views she does not hold,” regardless of context. (¶ 31.) The plaintiff also submitted that the tribunal erred in inquiring into the validity of the plaintiff’s belief and that it should have instead considered whether the plaintiff’s belief was one that would make article 17 of the European Convention on Human Rights on prohibition of abuse of rights relevant, as that approach would have found the plaintiff’s belief to be worthy of respect in a democratic society. (¶ 32.)
The respondent argued that a core component of the plaintiff’s belief is to cause trans people “enormous pain by misgendering them,” going beyond “mere offence,” and that the plaintiff’s belief was likely to “give rise to harassment and create a hostile environment for others.” (¶ 37.) Thus, the tribunal had been correct in finding that the belief was not worthy of respect in a democratic society. Further, the respondent submitted that the tribunal did not require the plaintiff to refrain from expressing her beliefs, but merely to stop harassing trans people by misgendering them, which achieves a “fair balance between competing rights.” (¶ 39.) The respondent also argued that the plaintiff’s beliefs fell into the “lower category of hate speech identified by the [European Court of Human Rights] … which includes “serious, severely hurtful and prejudicial” comments that can be justifiably restricted by the state. (¶ 40.) The respondent finally submitted that “the law of the land that sex is immutable … should no longer be considered good law” in that, established in 1971, it was “of its time,” and that Parliament later decreed that sex is not immutable by enacting section 9 of the Gender Recognition Act 2004. (¶ 41.) The respondent also made a policy argument that if the appeal were allowed, “no trans person would be safe from harassment in the workplace by a person holding gender-critical belief, and … no employer … could take action against such a person to maintain a safe space for trans persons.” (¶ 42.)
The EAT considered the plaintiff’s beliefs, the legal framework and arguments around her beliefs, and the tribunal’s judgment, and held that the tribunal had made two errors.
First, the tribunal’s only task was to determine whether the plaintiff’s belief fell within section 10 of the Equality Act. That analysis was confined to determining whether the belief qualified for protection under article 9 of the European Convention on Human Rights on freedom of religion. The EAT held there is no balancing exercise between competing rights at this stage, because it is only a belief that involves the destruction of the rights of others that would fail to qualify. (¶ 102.)
Second, the tribunal erred in imposing a requirement on the plaintiff to “refer to a trans woman as a woman to avoid harassment.” (¶ 103.) The EAT held that in the absence of any specific circumstances in which harassment might arise, this requirement was a “blanket restriction on the [plaintiff’s] right to freedom of expression,” a right that applies to the expression of views that might “offend, shock or disturb.” (¶ 103.) The tribunal’s justification for the blanket restriction was that the plaintiff’s belief “necessarily harms the rights of others,” which the EAT held was not correct because the plaintiff’s belief will not always amount to unlawful harassment and harm the rights of others. (¶ 103.)
The EAT then went on to hold that, in properly applying the test set out in Grainger, the “only possible conclusion is that the [plaintiff’s] belief does fall within [section 10 of the Equality Act]” (¶ 110), as the plaintiff’s belief is “widely shared” (¶ 113) and the belief is “consistent with the law” (¶ 114).
The EAT remitted the matter back to the tribunal for a new hearing to determine whether the treatment the plaintiff complained of was due to or related to her beliefs.
The EAT recognized that “some trans people will be disappointed by this judgment” and made clear that the EAT has “not expressed any view on the transgender debate.” (¶ 118.) The judgment does not allow for “misgendering without impunity,” and does not mean that “trans persons do not have the protections against discrimination and harassment” or that “employers and service providers will not be able to provide a safe environment for trans persons.” (¶ 118.)Prepared by Chris Brain, Law Library intern, under the supervision of Clare Feikert-Ahalt, Senior Foreign Law Specialist
Updated July 26, 2021