Be Careful What You Tweet For (part 2)

24 January 2020 by

The Transgender Pride flag

In this article, the significance of the Forstater judgment will be discussed as well as Lord Sumption’s comment on the ruling in the Times. An analysis of the ruling itself can be found here, in part 1

The Claimant’s belief in Forstater – that “sex is biologically immutable” — denied trans people their legal right to be recognised as the sex they had transitioned to even when they had obtained a Gender Recognition Certificate. This right has been recognised for over a decade by the European Convention on Human Rights (“the Convention”) and by domestic law in the Gender Recognition Act 2004. The Claimant’s belief — in the words of Judge Tayler — also violated the dignity of trans people and created an “intimidating, hostile, degrading, humiliating or offensive environment” for them. 

Regrettably such beliefs are not as uncommon in the UK as one would hope. In fact, similar beliefs are likely to be shared by others (albeit some of their views may be less extreme than the Claimant’s in Forstater). And this raises the question – what effect might such beliefs be having on the lives of trans people in the UK?  

One quick look at Stonewall’s Trans Report in 2018 may give us some insight into this. It found, for example, that two in five transgender people surveyed had experienced a hate crime because of their identity and had had to adjust the way they dressed because of fear of discrimination or harassment. Another Stonewall report, Trans Key Stats, found that 48% of trans people have attempted suicide and that 84% of trans people have thought about it.  

Decided against this backdrop, the case illustrates how the Equality Act 2010 protects trans people – as well as other vulnerable groups – from “absolutist” beliefs which, at their core, violate basic human dignity. Not only that, but the ruling may also deter individuals from making similar claims in the future (notwithstanding the fact that the ruling is not binding on other courts). 

This, however, is by no means revolutionary. Indeed, anti-Semitic views have also been excluded from protection in equality laws in the past as they were held to be similarly unworthy of protection in a democratic society.

Yet in an article written by the former Supreme Court Justice, Lord Sumption, in the Times, it is argued that living in a democratic society entails living with each others’ beliefs. For the most part, this view is correct. However, if one is to follow the principles set out in Forstater, an important caveat must be included. That is, that only beliefs which are worthy in a democratic society should be protected – not those like the Claimant’s that violate the dignity of trans people. 

Further, Lord Sumption questions whether a belief that the law is wrong should be protected as a philosophical belief under the Equality Act 2010. He answers this in the affirmative, arguing that the Claimant in Forstater, for example, was not interfering with the statutory rights of trans people under the Gender Recognition Act 2004. She “merely” believed that they should not be afforded such rights as, in her view, gender is an objective fact.

However, there are two issues with this. The first is that the Claimant’s core belief was that “sex is biologically immutable”, not gender. Lord Sumption conflates the two in his article. When describing the facts of the case, for example, he states that the Claimant’s belief was that “gender is an immutable biological fact”. Whether this is a genuine mistake or whether he is simply not aware of the distinction between the two is unclear. 

That distinction is an important one to make. This is because the Claimant’s belief did affect the statutory rights of trans people under the Gender Recognition Act 2004, which provides trans people with a means of legally changing their sex if they obtain a Gender Recognition Certificate. As the Claimant’s belief refused to recognise or accept this, the statutory rights of trans people were directly affected. 

The second issue is the logical limit of Lord Sumption’s view that a belief that the law is wrong could be classified as a protected philosophical belief. An individual can, of course, believe that the law is wrong on any given issue, as many people do in relation to trans rights and other controversial issues such as same-sex marriage. Arguably, however, that individual’s belief should not be protected as a philosophical belief if it goes against basic human rights norms. Such beliefs were never intended to be protected and it would make for worrying precedent if they were. 


Forstater is undoubtedly a significant case as it highlights the complexity of defining and assessing philosophical beliefs in the courts. At the same time, it also illustrates how “absolutist” beliefs will not be protected under the Equality Act 2010. Such beliefs are simply not worthy of protection in a democratic and pluralistic society. 

It is hoped that when dealing with trans issues in the future, judges will follow Judge Tayler’s careful and detailed method of analysis in Forstater. This is preferred to Lord Sumption’s analysis which uses inaccurate terminology such as gender to describe elements of the Claimant’s case which were wholly based on sex. 

It should also be reiterated that no court will be bound to follow this reasoning in later cases, as it was only an employment tribunal ruling. However, whilst not binding, Forstater does provide a good example of when individuals should be careful what they tweet for – especially if those views violate human dignity like the Claimant’s did. 

Euan Lynch is currently studying for the Graduate Diploma in Law while teaching English in Madrid and will commence the Legal Practice Course in July.


  1. gillr says:

    Unfortunately for the author, biology itself is “absolutist”. Humans are either male or female, and cannot change our sex.

  2. Samantha Allison says:

    You can talk about rights and beliefs all day, but sex is biologically immutable. That is scientific fact; to pretend that it less worthy of respect than belief in the Flying Spaghetti Monster brings the law into disrepute.

  3. Geoffrey says:

    Are there three questions; !) physiological sex, 2) psychological or social gender’ and 3) genetic arrangement (XX, XY and exceptions)? Is there a single word for the third circumstance? Can it be changed in practice?

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: