Employment tribunal: a philosophical belief that men and women cannot change their sex is not protected

Judge finds views were incompatible with human decency and conflicted with the fundamental rights of others.

An update to this case can be found here: Claimant’s “gender critical” belief is protected under the Equality Act

Religion and belief is one of the nine protected characteristics set out in the Equality Act 2010 (the Act). A belief means any religious or philosophical belief and includes a lack of belief. Philosophical belief is not defined in the Act. Courts and tribunals must therefore test the concept by reference to the following:

i)  the belief must be genuinely held;

ii)  it must be a 'belief' and not just an opinion or view based on the present state of information;

iii) it must relate to a 'weighty and substantial' aspect of human life and behaviour;

iv) the belief must be sufficiently cogent, serious, coherent and important; and

v) the belief must be worthy of respect in a democratic society and not incompatible with human dignity or conflict with the fundamental rights of others.

An employment tribunal has recently decided a case many will have seen in the news about whether an individual's views on transgenderism were protected under the Act.

Case details: Forstater v CGD Europe and others

Ms Forstater worked as a researcher for CGD, a think tank, from 2015 and was employed through a series of contracts. In 2018, Ms Forstater became actively involved in social media exchanges around government proposals to amend the Gender Recognition Act 2004 (the 'GRA') to allow individuals to self-identify their gender, expressing her concerns about these proposals.

Under the GRA, someone who transitions under specific circumstances, including professional medical involvement, is granted a certificate which, for all legal intents and purposes, identifies that person's sex. In this way transgender women can therefore legally be recognised as women and transgender men can be recognised as men.   

After a series of exchanges via social media, complaints were raised about Ms Forstater's use of language and she was alleged to have made transphobic statements. CGD questioned Ms Forstater on this point via internal processes and she denied the allegations.

When Ms Forstater's contract was not renewed in 2019 she brought employment tribunal claims against CGD for belief discrimination, amongst other things. In particular, Ms Forstater claimed that her contract was not renewed because she had expressed a 'gender critical' opinion, which in essence is that sex is unalterable and whatever a person's status was at birth in regard to sex, this could not be changed.

Employment tribunal

The tribunal took evidence from a variety of sources, including Ms Forstater's social media posts, to gauge the degree to which her views were genuine but also to understand their impact on others.

The tribunal heard evidence of a complaint from outside of work where Ms Forstater was alleged to have 'misgendered' someone as a male when that person preferred to be referred to by the plural pronouns 'they' and 'them'. Ms Forstater responded to the allegations by saying '[I]n reality Murray is a man. It is Murray's right to believe that Murray is not a man, but Murray cannot compel others to believe this' and that she '[reserved] the right to use the pronouns 'he' and 'him' to refer to male people' and that while she might choose to use alternative pronouns as a courtesy, she could not be compelled to use them. 

In particular, attention was given to Ms Forstater's unwillingness to accommodate a transgender person's wishes. As well as taking Ms Forstater's comments about Murray into account, Ms Forstater denied the right of a person with a GRA certificate to be the sex to which they transitioned, on the basis that this was a 'mere legal fiction'. The tribunal disagreed; the GRA certificate provided a right by giving effect to Articles 8 and 12 of the European Convention on Human Rights (to respect for private and family life and to marry) and this was not something Ms Forstater was entitled to ignore.

The tribunal went further and noted that calling a trans woman a man is likely to be profoundly distressing for that individual and may even be unlawful harassment (gender reassignment is also a protected characteristic under the Act). In such a scenario, the tribunal concluded that a person could not expect to be protected if their core belief or a component of it would necessarily result in the violation of the dignity of others.  

The tribunal concluded that Ms Forstater's belief met the identified requirements of items i) to iv) set out above, but found that it was not a view which could be respected in a democratic society because it was ultimately incompatible with human dignity and impinged on the fundamental rights of others. 

As a result, Ms Forstater's claim for belief discrimination failed.

Comment

We discussed in our October 2019 Employment Law Bulletin a similar decision in the case of Mackereth v DWP and another, where a doctor's beliefs were found to be incompatible with human dignity, conflicted with the fundamental rights of transgender individuals and as a result were not therefore protected under the Act.

Cases such as these are good examples of when employers should think early on about engaging the appropriate advice. 

It is not uncommon to see employment tribunal cases where an employer has been caught between  sets of fundamental rights. It is difficult for employers to navigate these situations because each will depend on their own particular set of circumstances and can be highly nuanced. In situations like this an employer needs to assess whether a belief held by an employee is genuine and exercised in a manner worthy of protection under the Equality Act before delving into the circumstances surrounding an employee leaving their job.  However, those that engage with their advisers at an early stage will likely be best placed to manage any potential discrimination claims.   

This case is a first instance employment tribunal case and may be appealed.