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Can ‘misgendering’ be a ‘philosophical belief’ under Equality Act?

The Employment Appeal Tribunal has decided that gender-critical beliefs are protected as a philosophical belief under the Equality Act 2010. In a Covid context, will an anti-vaccination belief now also qualify?

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The Employment Appeal Tribunal has decided that gender-critical beliefs are protected as a philosophical belief under the Equality Act 2010. A transgender woman is a person who was born male but later in life decides to identify as a female. A person who was assigned female at birth and continues to identify as female would be termed a cisgender woman.

In a recent Employment Tribunal case, the gender-critical beliefs that Maya Forstater (the Claimant) held included the belief that a transgender woman (i.e. a person assigned male at birth but who identifies as female later in life) was still a male.

Ms Forstater distinguished between gender identity and biological sex. Gender identity means an individual’s personal concept of whether they are male or female. Biological sex means the assignment of either male or female at birth due to a person’s chromosomes, hormones, and body. Unlike gender identity, Ms Forstater believed that biological sex was fixed. It was this belief that the EAT held was a protected philosophical belief.

Background

Maya Forstater (the Claimant) is a researcher, writer, and adviser on sustainable development. She was a consultant for CGD Europe, a not-for-profit think tank which focuses on international development, from November 2016 until October 2018 when her contract was not renewed. Some staff raised concerns about some of the Claimant’s tweets and comments, describing them as ‘transphobic’, ‘exclusionary or offensive’ and that they were making them feel ‘uncomfortable’. One such comment read as follows: “I don’t think people should be compelled to play along with literal delusions like ‘trans-women are women’.” The Claimant also made further statements such as: “I don’t think being a woman/female is a matter of identity or womanly feelings. It is about biology.” Consequently, an investigation into the Claimant’s conduct followed which resulted in the Claimant being offered no further consultancy work and her visiting fellowship was not renewed.

Employment Tribunal

Ms Forstater holds gender-critical beliefs, which include the belief that biological sex cannot be changed (i.e. you are the same sex as when you were born) and that biological sex is separate to the gender a person identifies as. She complained to the Central London Employment Tribunal (the ET) that she had been discriminated against on the grounds of her gender-critical belief. Under the Equality Act 2010, a person is protected from being discriminated against because of their protected characteristic. One of the protected characteristics under the Equality Act is a philosophical belief. It was decided that there would be a preliminary hearing to establish whether the Claimant’s gender-critical belief could so be termed a ‘philosophical belief’ under the Equality Act 2010 and therefore a protected characteristic. If the Claimant was successful at the initial hearing, a later hearing would then decide if she was actually discriminated against because of her belief.

Though the Claimant acknowledged that in normal social discourse she would use the pronouns requested by the individual (e.g. if a trans woman wanted to be called she/her), her belief was that she should not be compelled to do so in situations where she considered it relevant to refuse so (e.g. in a discussion about a trans woman being present in what the Claimant considered a women-only space).

For a belief to qualify as such under the Equality Act it must satisfy the five tests in Grainger plc v Nicholson [2010] ICR 360:

(1) The belief must be genuinely held.
(2) It must be a belief and not an opinion of viewpoint based on the present state of information.
(3) It must be a belief as to a weighty and substantial aspect of human life.
(4) It must attain a certain level of cogency, seriousness, cohesion, and importance.
(5) It must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.

The ET held that the Claimant’s belief was ‘absolutist’ in nature, meaning that she believed a biological male was always male, and as such was not worthy of respect in a democratic society. Consequently, the Claimant fell short of the fifth Grainger test and was unsuccessful.

The Employment Appeal Tribunal’s Decision

The Claimant appealed to the EAT and it was decided that the ET had erred in its application of the fifth Grainger test. The EAT held that the Claimant’s gender-critical views were a protected philosophical belief.

In coming to its decision the EAT relied on the European Court of Human Rights, specifically case law on Article 9 (Freedom of thought, conscience and religion) and Article 10 (Freedom of expression), to inform the analysis of section 10 of the Equality Act in relation to protected philosophical beliefs. The EAT came to the conclusion that only if the belief involves a very grave violation of rights of others, ‘tantamount to the destruction of those rights’, would it be unworthy of respect in a democratic society. Giving guidance on the future application of the fifth Grainger test, the EAT stated that it is only those beliefs that are akin to that of ‘pursing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest forms’ that will be not worthy of respect. The decision stresses the fact that ‘beliefs that are offensive, shocking, or even disturbing to others’ would not be excluded from protection.

The EAT noted that whilst the Claimant’s belief, and her expression of them by refusing to refer to a trans person by their preferred pronoun, could amount to unlawful harassment, this was not necessarily the case. To answer that question, it would require a fact-sensitive analysis.

Comment and implications for employers

This decision means that gender-critical views that sex is immutable (i.e. that trans women are biologically male) will be protected as a philosophical belief under the Equality Act. Just as gender reassignment is a protected characteristic. Balancing both of these protected characteristics in the workplace will require careful thought by employers so as to protect both. This will entail the employer guarding against both untoward misgendering one the one hand and protecting employees from abuse because of their gender-critical beliefs on the other.

The principles that can be extracted from this case will have wide reaching implications outside of the trans debate. Examples that the EAT gave of when such beliefs will not be protected included Nazism and totalitarianism. Accordingly, for a philosophical belief to be protected under the Equality Act, it must only overcome a very low threshold.

In a Covid context, the question must be asked now, in light of this recent judgement, as to whether an anti-vaccination belief could qualify as a protected philosophical belief under the Equality Act. An “anti-vaxx” belief could potentially meet the fifth Grainger test due to its low threshold now (as clarified in the Maya Forstater case). Where an individual’s reasons for not wanting the Covid vaccination are based on online conspiracy theories, the real hurdle that the individual would now likely find challenging to meet would be the fourth Grainger test – that the belief must attain a certain level of cogency, seriousness, cohesion and importance. It would require an analysis of each individual’s reasons before making a judgement as to whether it would be a protected philosophical belief. As such, employers should remain cautious when considering implementing mandatory vaccination policies or they run the risk of discriminating against employees with such beliefs.

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