Section 10 of the Equality Act 2010 - which designates religion or belief as a protected characteristic - covers not just religious but also “philosophical” beliefs. In Forstater v CGD Europe and ors, the Employment Appeal Tribunal (EAT) concluded that the “gender critical” beliefs held by Ms Forstater (which include the belief that sex is immutable) could constitute philosophical beliefs under the Act.
Ms Forstater was a visiting fellow at CGD Europe, a not-for-profit think tank, carrying out paid consultancy work on specific research projects. In September 2018, she tweeted a number of times about proposed changes to the Gender Recognition Act saying that they would undermine women’s rights and protection for vulnerable women and girls. A number of her colleagues complained that some of her tweets were transphobic.
After an investigation into her conduct, her visiting fellowship was not renewed. She claimed that she had been subject to direct discrimination because of her “gender-critical” beliefs and/or harassment related to her philosophical belief that biological sex is real, important, immutable and not to be conflated with gender identity.
In order to decide whether her belief qualified as a “philosophical belief” under section 10 of the Equality Act 2010, the tribunal considered the criteria set out in Grainger plc and ors v Nicholson (weekly LELR 147):
- The belief must be genuinely held
- It must be a belief and not an opinion or viewpoint
- It must be a belief as to a weighty and substantial aspect of human life and behaviour
- It must attain a certain level of cogency, seriousness, cohesion and importance
- 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.
The tribunal concluded that the “absolutist” nature of Ms Forstater’s belief, whereby she would “refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment”, was “not worthy of respect in a democratic society” and as such did not satisfy the fifth criterion in Grainger (referred to as Grainger V) and could not be a “philosophical belief” within section 10.
In order to decide whether Ms Forstater’s belief came within the protection of section 10, the EAT pointed out that it had to be read in conjunction with article 9 (the right to freedom of belief) of the European Convention on Human Rights (ECHR). As article 9 was predicated on pluralism of thought, belief and expression and their foundational role in a liberal democracy, the EAT concluded that a belief only has to satisfy “very modest threshold requirements” in order to qualify for protection.
When applying Grainger V, therefore, the EAT cautioned that tribunals should “bear in mind that it is only those beliefs that would be an affront to convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection”.
As Ms Forstater’s gender-critical beliefs “were widely shared and … did not seek to destroy the rights of trans persons”, they clearly did not fall into that category. Although the EAT acknowledged that her beliefs were offensive to some and had the potential to result in the harassment of trans people in some circumstances, they nevertheless fell within the protection under section 10.
The tribunal had therefore wrongly applied Grainger V and the appeal was allowed.