The EAT Rules That Gender-critical Views Are A Protected Belief

Maya Forstater was at the forefront of controversy in 2018 due to tweets she posted stating that biological sex cannot be changed.

She was working as a Tax Adviser when her contract at Centre for Global Development (CGD), a charitable organisation based in London and Washington, was not renewed amid complaints and disputes over her views published on Twitter regarding proposals to reform the Gender Recognition Act (which would allow people to self-identify as the opposite sex). Members of staff at CGD had accused her tweets of being “transphobic”.

Forstater funded a legal challenge through the CrowdJustice website and took her case to the employment tribunal. In December 2019, Judge Tayler dismissed her claim:

“[Forstater] is absolutist in her view of sex and it is a core component of her belief that she will refer to a person by the sex she considered appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment. The approach is not worthy of respect in a democratic society.”

Forstater refused to accept this decision and took her claim to the Employment Appeal Tribunal (EAT). The Honourable Mr Justice Choudhury held that a belief that there only two biological sexes in human beings, and that it is impossible for a human being literally to change sex, was a ‘philosophical belief’ within the meaning of section 10 of the Equality Act 2010.

To qualify as a ‘philosophical belief’ under s. 10 of the Equality Act 2010, the belief must satisfy the five criteria set out in the Grainger plc v Nicholson [2010] case:

1. the belief must be genuinely held
2. it must be a belief and not an opinion or viewpoint based on the present state of information available
3. it must be a belief as to a weighty and substantial aspect of human life and behaviour
4. it must attain a certain level of cogency, seriousness, cohesion and importance, and
5. 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

Mr Choudhury held that Forstater’s beliefs passed the Grainger test and explained the scope and such application of ‘Grainger V’  in the ruling:

“79. In our judgment, it is important that in applying Grainger V, Tribunals 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. However, the manifestation of such beliefs may, depending on circumstances, justifiably be restricted under Article 9(2) or Article 10(2) as the case may be.”

It was governed that Forstater’s ‘gender-critical’ beliefs did “not seek to destroy the rights of trans persons” and the case was ultimately successful as the EAT determined that believing biological sex is immutable and met the test of a genuine philosophical position that is protected in the Equality Act.

It is extremely important to note that it was also found that Forstater’s beliefs could not be shown to be a direct attempt to attack other people and this formed the basis of the successful appeal.

It was accepted the tweets may be construed as offensive to some, however they fell short of totalitarianism or Nazism.

Mr Choudhury acknowledged that there may be a negative backlash from some transgender people however expressed that the judgement had not demonstrated a view on the “merits of either side of the transgender debate.” He went on to explain that, despite the beliefs of Ms Forstater being protected, the rights of trans people are just as important. If the beliefs held by any individual crossed the line into bullying, harassment or intimidation, then the protection of the victim becomes the key issue.

Baroness Falkner, chair of the Equality and Human Rights Commission, agreed with this assessment and clarified that there was a difference between holding a belief and how it was expressed. She explained: “Some may see the beliefs of others as questionable or controversial, but people must be free to hold them. This is why this case is so important.”

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