A belief is a philosophical belief for the purposes of the Equality Act if it meets the five conditions established in the case Grainger plc v Nicholson. It must:
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Be genuinely held;
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Be a belief not an opinion or viewpoint;
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Relate to a weighty and substantial aspect of human life and behaviour;
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Attain a certain level of cogency, seriousness, cohesion and importance; and
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Be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.
In Forstater v CGD Europe the EAT found that the claimant’s belief that biological sex is immutable and cannot be changed was a philosophical belief. The employment tribunal was wrong to find that it was not worthy of respect in a democratic society.
Ms Forstater was engaged as a consultant by CGD Europe, a think-tank specialising in international development. She believed that someone’s biological sex is determined at birth and cannot be changed and tweeted to this effect in the context of proposed amendments to the Gender Recognition Act. After CGD staff complained that her tweets were transphobic and offensive, CGD decided not to offer her further work. Ms Forstater claimed that she had been directly discriminated against because of a philosophical belief.
Overturning the employment tribunal decision, the EAT found that the concept of a belief had to be read in light of the emphasis the European Convention on Human Rights places on freedom of expression as an essential foundation of democratic society. For a belief not to be worthy of respect in a democratic society it must involve a very grave violation of the rights of others which is tantamount to a destruction of those rights. The types of belief that would not be protected would include pursuing totalitarianism, advocating Nazism or espousing violence and hatred in the gravest of forms. However, a belief will not be excluded from protection simply because it is offensive, shocking or disturbing to others.
The tribunal’s role was to decide whether Ms Forstater’s belief qualified for protection against that backdrop, not to become engaged with the merits or validity of the belief in question. A belief in the biological immutability of sex did not involve a destruction of the rights of others, it was widely shared, including by respected academics, and it was consistent with the law of the land. As such it was a philosophical belief under the Equality Act.
However, the EAT pointed out that it does not follow that those holding gender-critical beliefs can ‘misgender’ trans people with impunity. (In this context the tribunal accepted Ms Forstater’s evidence that she would usually seek to respect a person’s choice of pronoun and their self-identification of gender identity in a social or professional context.) Depending on the circumstances, misgendering could amount to harassment for which the perpetrator could be liable, even if it constituted the manifestation of a philosophical belief, and for which an employer could be vicariously liable.
Authored by Ed Bowyer and Stefan Martin
